IN RE: Marcus AYUSO (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum:  Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination, following a tier II disciplinary hearing, that he violated inmate rules 114.10 (7 NYCRR 270.2[B][15][i] [smuggling] ) and 116.13 (7 NYCRR 270.2[B][17][iv] [vandalism or possession of stolen property] ).  Contrary to petitioner's contention, the misbehavior report and the testimony of a civilian employee of the correctional facility with personal knowledge of the facts provide substantial evidence to support the determination that petitioner violated those inmate rules (see generally Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990] ).

We reject petitioner's further contention that he was deprived of due process by respondent's purported failure to render a determination on petitioner's administrative appeal, which is based on the fact that respondent did not check any box on the determination of that appeal indicating the disposition thereof.  “[A]n administrative body's failure to render a decision on an administrative appeal does not necessarily preclude a party from obtaining judicial review of the underlying determination” (Matter of Meehan v. Annucci, 144 A.D.3d 1278, 1279, 40 N.Y.S.3d 671 [3d Dept. 2016] ).  Here, a full reading of respondent's determination on the administrative appeal demonstrates that he rejected petitioner's contentions with respect thereto and that the underlying determination was therefore, in effect, administratively affirmed.  Even assuming, arguendo, that respondent's ministerial error in failing to state the disposition on the administrative appeal constituted a failure to render a decision, we note that respondent does not assert that petitioner failed to exhaust his administrative remedies as a defense to this proceeding (cf. Matter of DePonceau v. Fischer, 93 A.D.3d 1040, 1041, 940 N.Y.S.2d 493 [3d Dept. 2012], appeal dismissed 19 N.Y.3d 897, 949 N.Y.S.2d 340, 972 N.E.2d 505 [2012];  see generally Matter of Koch v. Sheehan, 95 A.D.3d 82, 86, 940 N.Y.S.2d 734 [4th Dept. 2012], affd 21 N.Y.3d 697, 976 N.Y.S.2d 4, 998 N.E.2d 804 [2013] ).  We therefore conclude that petitioner has not sustained any prejudice from the ministerial error (see Meehan, 144 A.D.3d at 1279, 40 N.Y.S.3d 671).

Finally, petitioner contends that the underlying determination is arbitrary and capricious.  By failing to raise that contention during the administrative hearing, however, petitioner did not preserve it for our review (see Matter of Allah v. Fischer, 118 A.D.3d 1507, 1507, 987 N.Y.S.2d 920 [4th Dept. 2014] ), and because he did not raise it in his administrative appeal, petitioner did not exhaust his administrative remedies with respect to that contention (see Matter of Stewart v. Fischer, 109 A.D.3d 1122, 1123, 971 N.Y.S.2d 618 [4th Dept. 2013], lv denied 22 N.Y.3d 858, 2013 WL 6598719 [2013] ).  This Court therefore has no discretionary power to reach it (see Matter of Nelson v. Coughlin, 188 A.D.2d 1071, 1071, 591 N.Y.S.2d 670 [4th Dept. 1992], appeal dismissed 81 N.Y.2d 834, 595 N.Y.S.2d 396, 611 N.E.2d 297 [1993] ).