Matter of Boyd v Fischer

Matter of Boyd v Fischer 2014 NY Slip Op 01791 Decided on March 20, 2014 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 20, 2014
516604

[*1]In the Matter of MARKEITH BOYD, Appellant,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: January 21, 2014
Before: Lahtinen, J.P., McCarthy, Garry and Rose, JJ.


Markeith Boyd, Wallkill, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Breslin, J.), entered April 4, 2013 in Albany County, which granted respondent's motion to annul the determination and remit for a new hearing.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating various disciplinary rules. Respondent moved to, among other things, remit the matter for a new hearing given that a substantial portion of the hearing was inaudible and could not be transcribed. Supreme Court granted respondent's motion. Petitioner now appeals, contending that expungement of the administrative determination, as opposed to remittal, is the appropriate remedy.

We disagree. "[T]he failure to produce a transcript [does] not involve a substantial evidence issue or implicate any fundamental due process rights" (Matter of Auricchio v Goord, 273 AD2d 571, 572 [2000]). As we find no equitable considerations herein to warrant expungement rather than remittal for a new hearing, Supreme Court's judgment will not be disturbed (see Matter of Tolliver v Fischer, 105 AD3d 1239, 1240 [2013]; Matter of Hayes v Fischer, 95 AD3d 1587, 1588 [2012]; Matter of Auricchio v Goord, 273 AD2d at 572).

Lahtinen, J.P., McCarthy, Garry and Rose, JJ., concur.

ORDERED that the judgment is affirmed, without costs.