
    In the Matter of Darryl Boswell, Petitioner, v Philip Coombe, Jr., as Acting Commissioner of New York State Department of Correctional Services, Respondent.
    [648 NYS2d 370]
   —Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner commenced this CPLR article 78 proceeding to challenge respondent’s determination, following a Tier III disciplinary hearing, that he violated inmate rules 104.12 and 104.13 (7 NYCRR 270.2 [B] [5] [iii], [iv]). Petitioner argues that the Hearing Officer was disqualified from acting as Hearing Officer pursuant to 7 NYCRR 254.1 because he actually witnessed the incident. By failing to raise that argument at the Tier III disciplinary hearing when appropriate remedial action could have been taken, petitioner has failed to exhaust his administrative remedies and this Court has no discretion to review the argument (see, Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834). In any event, the fact that the Hearing Officer was present in the facility and heard noise from the demonstration does not disqualify him from acting as Hearing Officer (see, Matter of Ricco v Irvin, 197 AD2d 896, appeal dismissed and lv denied 82 NY2d 875; Matter of Marquez v Mann, 188 AD2d 956; Matter of Blackshear v Coughlin, 185 AD2d 493; Matter of O’Neal v Coughlin, 162 AD2d 826, 827). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Wyoming County, Dadd, J.) Present—Denman, P. J., Green, Wesley, Doerr and Boehm, JJ.  