IN RE: William McKETHAN

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

IN RE: William McKETHAN, Petitioner, v. Daniel A. SENKOWSKI, as Superintendent of Clinton Correctional Facility, et al., Respondents.

Decided: February 25, 1999

Before:  MIKOLL, J.P., MERCURE, YESAWICH JR., CARPINELLO and GRAFFEO, JJ. William McKethan, Coxsackie, petitioner in person. Eliot Spitzer, Attorney-General (Yvonne M. Hove of counsel), Albany, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Clinton County) to review three determinations of respondents which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in three separate misbehavior reports, dated October 19, 1997, November 4, 1997 and November 19, 1997, with violating various prison disciplinary rules.   Supreme Court granted respondents' motion to dismiss petitioner's challenge to the determination in connection with the October 19, 1997 misbehavior report as untimely.   Supreme Court then transferred the proceeding to this court for review of the remaining determinations.

 Initially, we reject petitioner's contention that Supreme Court improperly dismissed his challenge to the determination rendered in connection with the October 19, 1997 misbehavior report as untimely.   The petition challenging the final administrative determination was not received by the County Clerk's office within the four-month Statute of Limitations period (see, CPLR 217).   Moreover, although the affidavit of service indicates the date on which petitioner's signature was notarized, petitioner failed to complete the affidavit establishing the date upon which he submitted his papers for mailing.

 Turning to petitioner's contentions regarding the determination in connection with the November 4, 1997 misbehavior report, we find that the misbehavior report and testimony presented at the hearing provide substantial evidence to support the determination finding petitioner guilty of harassing a facility employee (see, Matter of Waugh v. Miller, 238 A.D.2d 645, 646, 656 N.Y.S.2d 958).   Although petitioner denied having used abusive language in response to a correction officer's statement, this merely presented a credibility issue for the Hearing Officer to resolve (see, id.).

Finally, the Attorney-General has advised this court that the determination based upon the November 19, 1997 misbehavior report has been administratively reversed and that all references to the disciplinary hearing will be expunged from petitioner's institutional record.

ADJUDGED that the petition insofar as it relates to the determination based upon the October 19, 1997 misbehavior report is dismissed, as untimely;  determination relating to the November 4, 1997 misbehavior report is confirmed, without costs;  petition insofar as it relates to the determination based upon the November 19, 1997 misbehavior report is dismissed, as moot, without costs.

MEMORANDUM DECISION.

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