                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 22, 2016                   522288
________________________________

In the Matter of CHRISTOPHER
   ELLISON,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

Before:   Peters, P.J., Garry, Lynch, Devine and Mulvey, JJ.

                             __________


     Christopher Ellison, Comstock, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.

                             __________


      Combined proceeding pursuant to CPLR article 78 and action
for declaratory judgment (transferred to this Court by order of
the Supreme Court, entered in Chemung County) to, among other
things, review a determination of respondent finding petitioner
guilty of violating certain prison disciplinary rules.

      Based upon information from a confidential source,
petitioner was charged in a misbehavior report with assault on an
inmate and possession of a weapon. Following a tier III
disciplinary hearing, petitioner was found guilty of both
charges. The determination was subsequently reversed upon
administrative appeal and a rehearing was ordered. Following the
rehearing, petitioner again was found guilty as charged. That
determination was affirmed upon administrative appeal.
                              -2-                522288

Petitioner commenced this combined CPLR article 78 proceeding and
action for declaratory judgment seeking to vacate the
determination and a declaration that there is no regulatory
requirement that a prisoner at a disciplinary hearing need to
impose an objection in order to preserve his or her challenges
for administrative or judicial review. Supreme Court thereafter
transferred the matter to this Court.

      The misbehavior report, testimony at the hearing and
confidential information provide substantial evidence to support
the determination of guilt (see Matter of Davis v Annucci, 137
AD3d 1437, 1438 [2016]; Matter of Adams v Fischer, 116 AD3d 1269,
1270 [2014]). Contrary to petitioner's contention, we find that
the Hearing Officer's interview with the author of the
misbehavior report and review of the information from the
confidential source was sufficiently detailed with regard to the
attack to allow the Hearing Officer to independently assess the
credibility and reliability of the confidential information (see
Matter of Davis v Annucci, 137 AD3d at 1438; Matter of Al-Matin v
Prack, 131 AD3d 1293, 1293 [2015], lv denied 26 NY3d 913 [2015];
Matter of Spencer v Annucci, 122 AD3d 1043, 1044 [2014]).

      Nevertheless, respondent concedes, and our review of the
record confirms, that the Hearing Officer improperly denied
petitioner's request to call relevant witnesses, including the
correction officers present at the time of the alleged incident.
As the record reflects that the Hearing Officer gave a good-faith
basis for the denial of the witnesses, this amounts to a
regulatory violation such that the proper remedy is to remit the
matter for a new hearing (see Matter of Griffin v Prack, 110 AD3d
1287, 1287 [2013]; Matter of Moulton v Fischer, 100 AD3d 1131,
1131-1132 [2012], lv dismissed 20 NY3d 1021 [2013]). In view of
the foregoing, the remaining issues raised by petitioner in the
CPLR article 78 proceeding need not be addressed.

      To the extent that petitioner requests declaratory relief,
such relief is not authorized in a transferred proceeding
pursuant to CPLR 7804 (g), and that part of the matter must
therefore be remitted to Supreme Court for further proceedings
and for the entry of an appropriate judgment thereon (see Matter
of Watson v New York State Dept. of Corr. & Community
                              -3-                  522288

Supervision, 108 AD3d 817, 818 [2013], lv dismissed 22 NY3d 914
[2013], lv denied 23 NY3d 902 [2014]; Nunez v LaValley, 95 AD3d
1583, 1584 [2012]).

     Peters, P.J., Garry, Lynch, Devine and Mulvey, JJ., concur.



      ADJUDGED that (1) the action for declaratory judgment is
severed and said matter remitted to the Supreme Court for further
proceedings not inconsistent with this Court's decision, and (2)
the determination is annulled, without costs, and the CPLR
article 78 proceeding remitted to respondent for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
