Appellate Division of the Supreme Court of the State of New York December 20, 1985 (Howard v. Kelly)

Judgment unanimously reversed, on the law, and petition dismissed. Memorandum: Petitioner waived his right to challenge the legality of a Superintendent’s proceeding by refusing to attend the hearing (Matter of Payne v Smith, 97 AD2d 960; see also, Matter of Morrison v Coughlin, 101 AD2d 943, 944, lv denied 63 NY2d 605; People ex rel. Morgan v La Vallee, 49 AD2d 652, lv denied 37 NY2d 710).