Howard v. Kelly

Judgment unanimously reversed, on the law, and petition dismissed. Memorandum: Petitioner waived his right to challenge the legality of a Superintendent’s proceeding by refusing to attend the hearing (Matter of Payne v Smith, 97 AD2d 960; see also, Matter of Morrison v Coughlin, 101 AD2d 943, 944, lv denied 63 NY2d 605; People ex rel. Morgan v La Vallee, 49 AD2d 652, lv denied 37 NY2d 710). In any event, petitioner’s claim that a written misbehavior report did not constitute substantial evidence in support of the determination is without merit (see, Matter of Semper v Smith, 66 NY2d 130). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J.—art 78.) Present—Dillon, P. J., Denman, Green, O’Donnell and Schnepp, JJ.