                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   522052
________________________________

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


Calendar Date:   September 20, 2016

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

                             __________


     Dennis Meehan, Fallsburg, 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 finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner was charged in a misbehavior report with using a
controlled substance after a sample of his urine twice tested
positive for the presence of buprenorphine. He was found guilty
of the charge following a tier II disciplinary hearing. At the
conclusion of the hearing, he was advised that he could take an
appeal to the superintendent of the correctional facility within
72 hours. Petitioner filed an administrative appeal, but the
superintendent rejected it and mistakenly informed him that the
appeal "must be sent to Special Housing in Albany." Petitioner
                               -2-                522052

thereafter commenced this CPLR article 78 proceeding.1

      Initially, petitioner contends that he was deprived of due
process as he was improperly denied administrative review of the
disciplinary determination given the superintendent's rejection
of his appeal. The applicable regulations provide that an appeal
from a determination made after a tier II disciplinary hearing is
to be addressed to the superintendent of the facility (see 7
NYCRR 253.8) and the superintendent erred in giving petitioner a
contrary instruction. Nevertheless, an administrative body's
failure to render a decision on an administrative appeal does not
necessarily preclude a party from obtaining judicial review of
the underlying determination (see e.g. Matter of Furman v
Annucci, 138 AD3d 1269, 1270 [2016], lv dismissed 27 NY3d 1188
[2016]; Matter of King v Stanford, 137 AD3d 1396, 1397 [2016]).
Petitioner has commenced this CPLR article 78 proceeding to
review the subject determination and respondent has not opposed
it on the ground that petitioner failed to exhaust his
administrative remedies. Rather, respondent has acknowledged the
superintendent's error and is treating the determination as if it
were administratively affirmed. Accordingly, under these
circumstances, petitioner has suffered no prejudice (see Matter
of Dunwoody v Goord, 20 AD3d 833, 834 [2005]), and there has been
no due process violation.

      Petitioner also contends that he was improperly denied the
right to call as a witness a representative from the manufacturer
of the testing equipment. We find this claim to be unavailing
inasmuch as the Hearing Officer attempted to obtain this
testimony, but the manufacturer refused to make a witness
available to testify at the disciplinary hearing (see Matter of
Timmons v Annucci, 139 AD3d 1224, 1224 [2016], lv denied 28 NY3d
903 [2016]; Matter of Smith v Prack, 138 AD3d 1286, 1287 [2016]).


      1
         Although the petition did not raise the issue of
substantial evidence and the proceeding was improperly
transferred, we nevertheless retain jurisdiction in the interest
of judicial economy (see Matter of Toliver v New York State Dept.
of Corr. & Community Supervision, 127 AD3d 1536, 1537 n 1
[2015]).
                              -3-                  522052

Likewise, petitioner was not improperly denied test documentation
from other correctional facilities that was irrelevant to the
charge against him (see Matter of Henderson v Fischer, 98 AD3d
1162, 1163 [2012]). We have considered petitioner's remaining
arguments, to the extent that they are properly before us, and
find them to be unpersuasive.

      Peters, P.J., Egan Jr., Lynch, Devine and Clark, JJ.,
concur.



      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
