Hughes v. Bedard , 984 N.Y.S.2d 887 ( 2014 )

Appeal from a judgment of the Supreme Court (Zwack, J.), entered January 16, 2013 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Following a tier III prison disciplinary hearing, petitioner was found guilty of drug use and violating family reunion program procedures. Upon administrative appeal, the determination was administratively reversed and a rehearing ordered due to an incomplete electronic recording of the hearing.

In cases such as this one, where the Commissioner of Corrections and Community Supervision has yet to “issue[ ] a final determination, it is entirely proper for the Commissioner to order a rehearing upon his administrative review of an inmate disciplinary proceeding, even where an error sought to be corrected is of constitutional magnitude” (Matter of Stephens v Goord, 273 AD2d 656, 657 [2000], lv denied 95 NY2d 766 [2000]; see Matter of Higgins v Selsky, 27 AD3d 913, 914 [2006]). As we find no basis to conclude that a rehearing was improperly ordered, Supreme Court properly dismissed the proceeding (see Matter of Stephens v Goord, 273 AD2d at 657).

Lahtinen, J.P, McCarthy, Garry and Egan Jr., JJ., concur.

Ordered that the judgment is affirmed, without costs.