For Judgment Pursuant to Article 78 of the Civil Practice Law and Rules This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the Petition of Johny Martin supported by the Petitioner’s Affidavit in Support of Order to Show Cause, both sworn to on August 3, 2017. Both of these documents were filed in the St. Lawrence County Clerk’s Office on September 11, 2017.The Court issued an Order to Show Cause on September 15, 2017. By letter to the Chief Clerk, St. Lawrence County, dated November 14, 2017, the Petitioner requested the return date of the Order to Show Cause thereby indicating that he had not received the Order to Show Cause dated September 15, 2017. The Chief Clerk provided the Petitioner another copy of the Order to Show Cause by letter dated November 20, 2017. Thereafter, by letter dated November 28, 2017, the Petitioner requested the Court make service on his behalf in light of his financial hardship or, in the alternative, he requested an extension to make service. By letter dated December 7, 2017, the Chief Clerk forwarded such letter to the Court. In response thereto, the Court issued an Amended Order to Show Cause dated December 12, 2017. The Petitioner filed an Affidavit of Service on December 21, 2017.On January 2, 2018, the Court received the Respondent’s motion to dismiss for lack of personal jurisdiction which was returnable on December 22, 2017. By letter dated January 2, 2018, the Court advised Assistant Attorney General Lendon that the December 22, 2017 return date was untenable and extended the return date to March 9, 2018 in accordance with the terms of the Amended Order to Show Cause1 dated December 14, 2017. By letter dated January 5, 2018, the Court was advised that the Petitioner was temporarily absent from the facility and may not return for the immediate future, but his mail would be held at that facility pending his return. Thereafter, by letter dated January 17, 2018, the Petitioner requested a further extension to submit an Affidavit of Service and such request was granted by letter of the Court dated January 23, 2018. By undated letter received on February 2, 2018, the Petitioner requested a clarification of what documents needed to be served as he had already served the Petition together with the supporting documents with the original Order to Show Cause and then the Amended Order to Show Cause. In response thereto, by letter-order dated February 2, 2018, the Court directed that service was complete based upon Attorney Lendon’s letter dated January 3, 2018 acknowledging receipt.The Court has received the Respondent’s motion to dismiss, or in the alternative, to transfer the proceeding to the Appellate Division, Third Department pursuant to CPLR §7804(g). In support of the motion, the Court has considered the affidavit of Eileen Callaghan, the affirmation of Alicia M. Lendon, Esq., Assistant Attorney General, and exhibits annexed thereto. The Court has also considered the undated Reply received from the Petitioner on April 2, 2018.Preliminarily, based upon the letter of January 3, 2018 by Attorney Lendon, the Court eliminated the need for the Petitioner to again serve the petition and supporting papers with the Amended Order to Show Cause. The Court read Attorney Lendon’s letter to admit service, albeit untimely. Indeed, while it now appears that the Petitioner did not actually serve the Respondent, the Court waived such requirement by the letter-order dated February 2, 2018 which superceded the terms of the Amended Order to Show Cause. As such, the motion to dismiss is denied.On May 8, 2017, the Petitioner was served with an Inmate Misbehavior Report charging him with violating rules: 102.10 (threats), 107.11 (harassment), 110.32 (beard/mustache length), 106.10 (refusing direct order) and 104.13 (creating a disturbance). The description of the incident is as follows:“On [May 6, 2017 at 5:40 p.m.] I stopped inmate Martin, Johny 15A3669 in the Mess hall to talk to him about his illegal beard and hair style. Immediately inmate Martin became argumentative drawing the attention of the inmates in the mess hall. I then gave Martin a direct order to give me his ID card, again Martin became argumentative. Martin finally complied with my direct order and surrendered his I.D. I then escorted Martin to the Sgt.’s office so I could show him a copy of directive #4914 inmate grooming standards. Martin has twisted hair and a beard that is in excess of 1 inch. Directive #4914 clearly states that ‘hair may not be woven, twisted, or braided together. Martin also could not produce any kind of a beard permit to justify the length of his beard. Again Martin became argumentative and then he stated ‘I don’t give a Fuck about your Fucking directive and if you don’t leave me alone, me and you are going to have a Big Problem.’ At that time I gave Martin a direct order to turn around and put his hands on the wall so he could be placed in mechanical restraints. He complied and was then escorted to SHU with no incident.” Resp. Ex. B.The Tier III Superintendent’s Disciplinary Hearing was commenced on May 11, 2018 and concluded on May 17, 2018. The Hearing Officer heard testimony from the Petitioner, an inmate witness, as well as the author of the misbehavior report. Following the conclusion of the hearing, the Petitioner was found guilty of all charges and was sanctioned to 120 days of Special Housing Unit (SHU), with 30 days suspended for 180 days, as well as 120 days of loss of recreation, packages, commissary and phone privileges with 30 days suspended for a period of 180 days. The Petitioner filed an administrative appeal on May 30, 2017. Petitioner’s SHU sanction was reduced by 22 days on June 19, 2017. Thereafter, the modified Tier III disposition was affirmed on July 7, 2017.The Petitioner asserts that the determination was not based upon substantial evidence inasmuch as the Hearing Officer failed to consider the documentary evidence in contravention of the misbehavior report. Petition, 10. Inasmuch as the petition raises an issue of substantial evidence, the Respondent requests that the matter be transferred to the Appellate Division, Third Department pursuant to CPLR §7804(g).CPLR §7804(g) reads as follows:“Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced. When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding.”Upon review of the papers, the Court has determined that there are no other issues to dispose of prior to the transfer. See Matter of Argentina v. Fischer, 98 AD3d 768; Matter of Alache v. Fischer, 91 AD3d 1240.Based upon all of the above, it is, therefore, the decision of the Court and it is herebyORDERED, that the Respondent’s motion to dismiss the Petition is denied; and it is furtherORDERED, that this proceeding, in its entirety, is transferred to the Appellate Division, Third Department.Dated: June 18, 2018 atLake Pleasant, New York
