                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 3, 2016                     520707
________________________________

In the Matter of THEODORE
   KATSANOS,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of
   Special Housing and Inmate
   Disciplinary Programs,
                    Respondent.
________________________________


Calendar Date:   January 19, 2016

Before:   Egan Jr., J.P., Rose, Lynch and Devine, JJ.

                             __________


     Theodore Katsanos, Hudson, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), for respondent.

                             __________


      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Albany County) to
review a determination of the Commissioner of Corrections and
Community Supervision finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner was ordered to provide a urine sample for
testing, but failed to do so despite being given eight ounces of
water each hour for a three-hour period. As a result, he was
charged in a misbehavior report with refusing a direct order and
failing to comply with urinalysis testing procedures. Following
a tier III disciplinary hearing, he was found guilty of failing
to comply with urinalysis testing procedures. The determination
was later affirmed on administrative appeal and this CPLR article
                              -2-                520707

78 proceeding ensued.

      Petitioner contends, among other things, that he was unable
to provide a urine sample because he suffers from shy bladder
syndrome and that, consequently, he should not have been found
guilty of refusing to comply with urinalysis testing procedures.
He informed the Hearing Officer of his medical condition during
the hearing and also provided medical documentation establishing
that he had problems providing urine specimens in the past due to
this condition. The Hearing Officer downplayed the significance
of petitioner's medical condition and did not consider the
medical documentation submitted even though it was sent prior to
the conclusion of the hearing. The only evidence that the
Hearing Officer considered was the misbehavior report and the
request for urinalysis form. The request for urinalysis form
indicated that petitioner did not willfully refuse to submit the
specimen, but also stated that petitioner did not claim to be
unable to submit the specimen in the presence of others. Given
this inconsistency in the request for urinalysis form, the
absence of any testimony concerning the administration of the
urinalysis test or petitioner's medical condition and the Hearing
Officer's failure to consider the medical documentation
submitted, we find that the determination at issue is not
supported by substantial evidence (see Matter of Collins v
Fischer, 109 AD3d 1040, 1040-1041 [2013], lv dismissed 23 NY3d
954 [2013]; Matter of Rogers v Fischer, 96 AD3d 1318, 1319
[2012]; Matter of Barone v Prack, 92 AD3d 999, 999-1000 [2012];
compare Matter of Sterling v Fischer, 75 AD3d 709 [2010]; Matter
of Capocetta v Fischer, 72 AD3d 1377, 1378 [2010], lv denied 15
NY3d 706 [2010]). Inasmuch as petitioner has already served his
administrative penalty, the proper remedy is expungement (see
Matter of Rogers v Fischer, 96 AD3d at 1319). In view of our
disposition, we need not address petitioner's remaining
contentions.

     Egan Jr., J.P., Rose, Lynch and Devine, JJ., concur.
                              -3-                  520707

      ADJUDGED that the determination is annulled, without costs,
petition granted and the Commissioner of Corrections and
Community Supervision is directed to expunge all references to
this matter from petitioner's institutional record.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
