Ballard v. Kickbush
| Decision Date | 05 October 2018 |
| Docket Number | 893,TP 18–00274 |
| Parties | In the Matter of Darnell BALLARD, Petitioner, v. Susan KICKBUSH, Superintendent, Gowanda Correctional Facility, Respondent. |
| Court | New York Supreme Court — Appellate Division |
165 A.D.3d 1587
85 N.Y.S.3d 645
In the Matter of Darnell BALLARD, Petitioner,
v.
Susan KICKBUSH, Superintendent, Gowanda Correctional Facility, Respondent.
893
TP 18–00274
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: October 5, 2018
DARNELL BALLARD, PETITIONER PRO SE.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (MARCUS J. MASTRACCO OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determinations are unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determinations, following separate tier II disciplinary hearings, that he violated the inmate rules alleged in two unrelated misbehavior reports. Petitioner was charged in the first misbehavior report with violating inmate rules 106.10 ( 7 NYCRR 270.2 [B][7][i] [refusing direct order] ), 121.12 ( 7 NYCRR 270.2 [B][22][iii] [telephone program violation] ), and 181.10 ( 7 NYCRR 270.2 [B][27][i] [noncompliance with hearing disposition] ). Petitioner was thereafter charged in the second misbehavior report with violating inmate rules 100.13 ( 7 NYCRR 270.2 [B][1][iv] [fighting] ) and 104.11 ( 7 NYCRR 270.2 [B][5][ii] [violent conduct] ).
Contrary to petitioner's contention, a misbehavior report standing alone can constitute substantial evidence in support of the determination that he violated inmate rules, and we conclude that both misbehavior reports did so here (see Matter of Perez v. Wilmot , 67 N.Y.2d 615, 616–617, 499 N.Y.S.2d 659, 490 N.E.2d 526 [1986] ; Matter of McMillian v. Lempke , 149 A.D.3d 1492, 1493, 52 N.Y.S.3d 771 [4th Dept. 2017], appeal dismissed 30 N.Y.3d 930, 62 N.Y.S.3d 292, 84 N.E.3d 964 [2017] ). With respect to the first misbehavior report, any inconsistencies in the correction officer's description of the incident in that report presented a credibility issue for the Hearing Officer to resolve (see
...
To continue reading
Request your trial
-
Stache Invs. Corp. v. Ciolek
...raise feigned factual issues in an effort to avoid the consequences’ of [an] otherwise valid motion for summary judgment" ( Birjukow, 165 A.D.3d at 1587, 85 N.Y.S.3d 643 ). By accepting the affidavits submitted in opposition to the motion here as sufficient to raise an issue of fact, the ma......
-
Birjukow v. Niagara Coating Servs., Inc.
...to submit the data upon which he based his opinions. The affidavit thus lacks an adequate factual foundation and is of no probative 85 N.Y.S.3d 645value" ( Costanzo v. County of Chautauqua , 108 A.D.3d 1133, 1134, 969 N.Y.S.2d 317 [4th Dept. 2013] ). Finally, in addition to failing to raise......
-
Burroughs v. Colvin
...Petitioner thus failed to exhaust his administrative remedies with respect to that contention (see Matter of Ballard v. Kickbush, 165 A.D.3d 1587, 1589, 85 N.Y.S.3d 645 [4th Dept. 2018], appeal dismissed 32 N.Y.3d 1182, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [Feb. 14, 2019] ), and this Court " ......
-
Robinson v. Annucci
...Petitioner thus failed to exhaust his administrative remedies with respect to that contention (see Matter of Ballard v. Kickbush , 165 A.D.3d 1587, 1589, 85 N.Y.S.3d 645 [4th Dept. 2018], appeal dismissed 32 N.Y.3d 1182, 95 N.Y.S.3d 133, 119 N.E.3d 773 [2019] ), and this Court " ‘has no dis......