Preview:

Matter of Kirshtein v Fischer 2007 NY Slip Op 33808(U) October 23, 2007 Supreme Court, Clinton County Docket Number: Judge: S. Peter Feldstein Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

[* 1 ]

STATE OF NEW YORK SUPREME COURT COUNTY OF CLINTON _______________________________________________X In the Matter of the Application of MICHAEL KIRSHTEIN, #96-A-7220, Petitioner, For a Judgment Pursuant to Article 78 Of the Civil Practice Laws and Rules -againstDECISION AND JUDGMENT RJI #09-1-2007-0219.020 INDEX # 07-0483 ORI #NY009013J

BRIAN S. FISCHER, Acting Commissioner, NYS Department of Correctional Services, Respondent. ____________________________________________X This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of Michael Kirshtein, verified on April 3, 2007, and stamped as filed in the Clinton County Clerk's office on April 9, 2007. Petitioner, who is now an inmate at the Attica Correctional Facility, is challenging the results of a Tier III Superintendent's Hearing held at the Clinton Correctional Facility Annex on December 15, 2006. The Court issued an Order to Show Cause on April 20, 2007. The Court next received and reviewed respondent's Answer and Return, verified on June 1, 2007, as well as respondent's Letter Memorandum of June 1, 2007. The petitioner then filed an amended petition in the Clinton County Clerk's office on June 7, 2007. The petitioner also filed his Reply to the respondent's original answering papers on June 19, 2007. By Letter Order dated August 6, 2007, the Court directed the respondents to serve and mail answering papers in response to the amended petition. The Court has since received and reviewed respondent's "ANSWER AND RETURN TO AMENDED PETITION," verified on August 24, 2007, as well as respondent's Letter Memorandum of August 24, 2007. The Court has also received and reviewed petitioner's Reply thereto, mailed directly to chambers and received on September 6, 2007.
1 of 4 / Kirshtein

[* 2 ]

As the result of an incident that occurred at the Clinton Correctional Facility Annex on December 11, 2006, the petitioner was issued an inmate misbehavior report charging him with a violation of inmate rule 113.24 (inmate shall not use or be under influence of any narcotics or controlled substances unless prescribed by a health service provider and then only in the amount prescribed). It is alleged in the inmate

misbehavior report that two urinalysis tests performed on a sample provided by the petitioner proved positive for opiates. A Tier III Superintendent's Hearing was held at the Clinton Correctional Facility Annex on December 15, 2006. At the conclusion of the hearing the petitioner was found guilty as charged and a disposition was imposed confining him the special housing unit for six months, directing the loss of various privileges for a like period of time and recommending the loss of 12 months good time. Upon administrative appeal the results and disposition of the Tier III Superintendent's Hearing of December 15, 2006, were affirmed. This proceeding ensued. In the original petition it was asserted that "[t]he hearing officer's permitting of evidence regarding the urinalysis testing and the procedures used during testing violated petitioner's rights to have dispositions based on substantial evidence . . ." That assertion, however, is not included in the amended petition. Rather, citing Woodward v.

Governor's Office of Employee Relations, 279 AD2d 725, the amended petition sets forth only one cause of action, in conclusory fashion, as follows: "The hearing officer conducting a tier 3 hearing was in violation of petitioner's due process rights where hearing officer is a Senior Correctional Counselor and ineligible to conduct tier 3 hearings pursuant to . . . 7 N.Y.C.R.R. Part 253.1 [should be 254.1] . . . [and] Civil Service Law

Download 2007_33808.pdf

New York Law