Opinion
November 19, 1993
Appeal from the Supreme Court, Wyoming County, Griffith, J.
Present — Callahan, J.P., Green, Balio, Fallon and Boehm, JJ.
Judgment unanimously vacated, determination confirmed and petition dismissed. Memorandum: Because petitioner's CPLR article 78 proceeding presented a substantial evidence question, it should have been transferred to this Court (see, CPLR 7804 [g]; Matter of Benesch v Village of Clayton, 185 A.D.2d 688, lv denied 81 N.Y.2d 702, rearg denied 81 N.Y.2d 912; Matter of Melvin v Kelly, 126 A.D.2d 956, lv denied 69 N.Y.2d 609). We consider the matter de novo, as if it had been properly transferred (see, Matter of Benesch v Village of Clayton, supra; Matter of Melvin v Kelly, supra).
Respondents' determination that petitioner violated institutional rules by refusing a direct order (see, 7 NYCRR 270.2 [B] [7] [i]) and making threats (see, 7 NYCRR 270.2 [B] [3] [i]) is supported by substantial evidence. Petitioner remained in the custody of prison officials during his treatment at Erie County Medical Center (see, Correction Law § 23) and was not free to decide "which orders to obey and which to ignore" (Matter of Rivera v Smith, 63 N.Y.2d 501, 516).