Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, June 9, 2013

Agency required to comply with its own procedures in processing a disciplinary action

Hassan v New York City Dept. of Correction2013 NY Slip Op 02686, Appellate Division, First Department
In this appeal of a CPLR Article 78 decision by Supreme Court that sustained the New York City Department of Correction’s [DOC] finding that the individual [Appellant] was guilty of certain charges, the Appellant conceded that the Hearing Officer’s determination was supported by substantial evidence.
Rather, Appellant contended, the record before the Supreme Court was defective because it was incomplete in that it lacked a record of the disciplinary hearing, DOC’s answer, and a written statement by a Correction Officer that the Hearing Officer was required to show Appellant as required by “DOC Directive 6500R-B(III)(C)(25) and (26).”
The Appellate Division agreed, explaining that “it cannot be determined on this record whether the Hearing Officer's failure to show [Appellant] the written statement by [the Correction Officer] prejudiced Appellant's defense.
Accordingly, said the court, it was remanding the matter to Supreme Court and directed DOC “to submit an answer pursuant to CPLR 7804(d) and any appropriate submissions pursuant to CPLR 7804(e), including a record of the hearing and a written witness statement [by the Correction Officer].”
The ruling further provides that after DOC made such submissions to Supreme Court, Supreme Court is to determine if the failure to provide Appellant with these writings “was harmless error.”
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

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