Opinion
TP 02-02112
March 21, 2003.
CPLR article 78 proceeding transferred to this Court by an order of Supreme Court, Cayuga County (Corning, J.), entered September 19, 2002, seeking to annul a determination after a Tier III hearing.
ROBERT W. TUMMINIA, PETITIONER PRO SE.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (PATRICK BARNETT-MULLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the determination be and the same hereby is unanimously annulled on the law without costs, the petition is granted in part and the matter is remitted to respondent for a new hearing.
Memorandum:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination directing that he be placed in administrative segregation (see 7 NYCRR 301.4 [b]). Respondent concedes that petitioner was denied his right to call witnesses at the Tier III hearing pursuant to 7 NYCRR 254.5(a) based on the Hearing Officer's failure to ascertain why several inmates had refused to testify (see Matter of Dawes v. Selsky, 286 A.D.2d 806, 808; Matter of Johnson v. Goord, 247 A.D.2d 801, 802). We therefore annul the determination, grant the petition in part and remit the matter to respondent for a new hearing (see Matter of Rondon v. Selsky, 274 A.D.2d 713, 714; Matter of Blake v. Coughlin, 189 A.D.2d 1016, 1017-1018). In view of our determination, we do not address petitioner's remaining contentions.