concurs in a separate memorandum. Levine, J. (concurring). Inasmuch as the Court of Appeals in Matter of Garcia v LeFevre (64 NY2d 1001, revg 102 AD2d 1004) did not reach what I consider to be the dispositive issue in the instant case, namely, whether respondents could justify by evidence submitted for the first time in their answer to the petition the refusal of prison authorities to permit petitioner to be present during testimony of inmate witnesses, the position of the majority in our Garcia decision (102 AD2d 1004) still controls (see also, Matter of Sapp v LeFevre, 111 AD2d 483). Therefore, I am constrained to concur.