
    In the Matter of Joseph Paruta, Petitioner, v Donald Selsky, as Director of Special Housing/Inmate Disciplinary Program of the New York State Department of Correctional Services, Respondent.
    [647 NYS2d 1013]
   —Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of using a controlled substance after two urinalysis tests revealed that he had used marihuana. He commenced this CPLR article 78 proceeding challenging the administrative determination on the ground, inter alia, that the urinalysis tests were not conducted in accordance with regulatory requirements.

Initially, inasmuch as petitioner failed to challenge the propriety of the testing procedure at the disciplinary hearing, he has waived his right to raise that issue here (see, Matter of McMillian v Selsky, 221 AD2d 785). Nonetheless, were we to consider the merits, we would find this claim to be unpersuasive since the record reveals that the same correction officer conducted both urinalysis tests because no other qualified officer was available and the regulations do not require more. In addition, we find that the misbehavior report, combined with the urinalysis testing documentation and the testimony adduced at the hearing, which refuted petitioner’s claim that the medications he was ingesting could have produced a false positive reading for marihuana, provide substantial evidence supporting the administrative determination. We have considered petitioner’s remaining claims and find them to be unavailing.

Cardona, P. J., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.  