You are here: / / THE DISORDERLY CONDUCT AND VIOLENT CONDUCT MISBEHAVIOR DETERMINATIONS WERE...

THE DISORDERLY CONDUCT AND VIOLENT CONDUCT MISBEHAVIOR DETERMINATIONS WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE (SECOND DEPT). ​

The Second Department, reversing (modifying) the superintendent’s determination, held that the disorderly conduct and violent conduct determinations were not supported by substantial evidence:

… [T]he determination that the petitioner was guilty of violating rule 100.15, which provides that an incarcerated individual shall not engage in unauthorized sparring, wrestling, body-punching, or other forms of disorderly conduct, was not supported by substantial evidence. The misbehavior report does not state that the petitioner engaged in any particular act of disorderly conduct set forth in the rule, or any other similar act that could be defined as disorderly conduct within the meaning of the rule, which contemplates some form of physical contact by an inmate with another individual. Nor does the misbehavior report constitute substantial evidence to establish that the petitioner was guilty of violating rule 104.11, prohibiting violent conduct. The report does not indicate that the petitioner committed any particular violent act, merely stating that “[f]orce became necessary,” without indicating what the petitioner did to necessitate the use of such force. Furthermore, there is no evidence outside the report to support the determination that the petitioner was guilty of disorderly conduct or violent conduct … . Matter of White v LaManna, 2022 NY Slip Op 06010, Second Dept 10-26-22

Practice Point: Here in these prison disciplinary proceedings there was no proof of violence on the part of the inmate. Therefore the disorderly conduct and violent conduct determinations were not supported by substantial evidence. The allegation that “force became necessary,” referring to the actions of the guards, was not enough.

 

You might also like
THE DEFENDANT DOCTORS IN THIS MEDICAL MALPRACTICE ACTION CLAIMED THEY DID NOT HAVE POSSESSION OF THE VENOGRAM USED TO DIAGNOSE A BLOCKAGE IN A VEIN IN DEFENDANT’S LEG; PLAINTIFF’S APPLICATION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE SHOULD NOT HAVE BEEN DENIED (SECOND DEPT).
DEFENDANTS’ MOTION TO COMPEL PLAINTIFF TO ALLOW THE EX PARTE INTERVIEW OF THE NONPARTY TREATING PHYSICIAN’S ASSISTANT ABOUT PLAINTIFF’S EXPLANATION OF THE CAUSE OF HER SLIP AND FALL WAS PROPERLY DENIED (SECOND DEPT).
When the Police Are Aware Suspect Is Represented by an Attorney and the Attorney’s Assistance Is Specifically Requested, the Attorney Must Be Contacted Before Conducting a Lineup Identification Procedure
IN A SLIP AND FALL CASE, EVIDENCE OF GENERAL CLEANING AND INSPECTION PRACTICES DOES NOT PROVE A LACK OF CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANT MUST PROVE THE AREA WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL (SECOND DEPT). ​
DURING THE FUNERAL PLAINTIFF (ALLEGEDLY) LEARNED DECEDENT’S BODY WAS NOT IN THE CASKET; THE LOSS OF SEPULCHER ACTION PROPERLY SURVIVED SUMMARY JUDGMENT (SECOND DEPT).
Pedestrian’s Action, In Violation of City Pedestrian Rules, Was the Proximate Cause of Pedestrian’s Injuries (Pedestrian Was Struck by a Car)
QUESTION OF FACT WHETHER POSITION OF TAXI PARTIALLY IN THE ROADWAY WAS PROXIMATE CAUSE OF PASSENGER’S INJURIES WHEN PASSENGER WAS STRUCK BY ANOTHER CAR APPROACHING FROM THE REAR.
Although the Doctor Was Employed by the Hospital, His Employment Did Not Encompass His Medical Practice—Therefore the Hospital Was Not Liable for the Doctor’s Medical Malpractice Under the Doctrine of Respondeat Superior/$6.8 Million Verdict Against the Doctors Based Upon a Delay in Diagnosing Cancer Should Not Have Been Set Aside

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE MOTION TO CONSOLIDATE THE TRIALS OF TWO ACTIONS STEMMING FROM THE SAME FIRE,... THE SENTENCING JUDGE IMPROPERLY SPECULATED AND CONSIDERED UNCHARGED CRIMES;...