IN RE: Floyd COWART

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Floyd COWART, Appellant, v. Donald SELSKY, as Director of Special Housing/Disciplinary, Respondent.

Decided: October 29, 1998

Before CARDONA, P.J., MIKOLL, WHITE, CARPINELLO and GRAFFEO, JJ. Floyd Cowart, Dannemora, in person. Dennis C. Vacco, Attorney General (Thomas B. Litsky of counsel), New York City, for respondent.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered September 3, 1997 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition for failure to state a cause of action.

Petitioner, an inmate at Sullivan Correctional Facility in Sullivan County, was found guilty of violating the prison disciplinary rules prohibiting the commission of a Penal Law offense and assault on an inmate.   He thereafter commenced this CPLR article 78 proceeding challenging the determination on substantial evidence grounds.   Respondent moved to dismiss the proceeding without first serving an answer and, finding substantial evidence to support the determination of guilt, Supreme Court granted the motion.   Petitioner appeals.   As the Attorney-General concedes, prior to addressing the merits of the proceeding, Supreme Court was required to direct respondent to serve an answer to the petition together with a copy of the disciplinary hearing transcript and other relevant exhibits.   We must accordingly remit this matter to Supreme Court for this purpose (see, Matter of Reynoso v. Coombe, 241 A.D.2d 738, 663 N.Y.S.2d 1016;  Matter of Richards v. Kuhlmann, 241 A.D.2d 577, 660 N.Y.S.2d 1016).

ORDERED that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court where respondent will be permitted to serve an answer within 20 days of the date of this court's decision.

MEMORANDUM DECISION.

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