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PETITIONER’S REQUEST FOR A VIDEOTAPE OF THE UNDERLYING INCIDENT WAS IMPROPERLY DENIED, EVEN THOUGH THE REQUEST WAS MADE FOR THE FIRST TIME DURING THE HEARING (THIRD DEPT).

The Third Department, ordering a new hearing, determined petitioner’s request for a videotape of the underlying incident was improperly denied by the hearing officer:

Although petitioner apparently did not request his assistant to obtain the videotape, he made such request during the course of the hearing. The Hearing Officer denied the request and informed petitioner that because he did not ask his assistant to obtain it, it was unpreserved. Based upon this omission, the Hearing Officer considered the videotape to be “unavailable.” However, there is nothing in the record to indicate that the videotape was, in fact, unavailable or that the Hearing Officer undertook any measures to ascertain if such videotape existed. In view of this, we conclude that petitioner’s request was improperly denied … . Matter of Davison v Annucci, 2019 NY Slip Op 01474, Third Dept 2-28-19

 

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