Diaz v. Ledbetter

Appellate Division of the Supreme Court of New York

Diaz v. Ledbetter

111 A.D.3d 1043, 974 N.Y.S.2d 808

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 14, 2013

StatusPublished

Cited by2 cases

This text of 111 A.D.3d 1043 (Diaz v. Ledbetter) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Diaz v. Ledbetter, 111 A.D.3d 1043, 974 N.Y.S.2d 808 (N.Y. Ct. App. 2013).

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Opinion

— Garry, J.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered October 18, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

In September 2011, petitioner applied to participate in a [1044]*1044temporary prison work release program and his application was denied based upon the serious nature of his crime, as well as his prior convictions and sanctions imposed while incarcerated. Petitioner filed a timely administrative appeal but, prior to receiving a response to that appeal, he commenced this CPLR article 78 proceeding seeking to challenge the denial. Following the service of respondent’s answer, Supreme Court dismissed the proceeding for petitioner’s failure to exhaust his administrative remedies, after which petitioner sought to appeal to this Court. However, this Court has been advised that, as of September 28, 2013, petitioner has been released on parole. Because petitioner is no longer incarcerated and, accordingly, is no longer affected by the determination that denied his temporary work release application, this appeal must be dismissed as moot (see Matter of Gallo v New York State Temporary Release Program, 100 AD3d 1165, 1166 [2012]; Matter of Shell v New York State Dept. of Corrections Temporary Release Program, 26 AD3d 537, 537 [2006]).

Rose, J.P, Lahtinen and Stein, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.

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— Garry, J.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered October 18, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

In September 2011, petitioner applied to participate in a [1044]*1044temporary prison work release program and his application was denied based upon the serious nature of his crime, as well as his prior convictions and sanctions imposed while incarcerated. Petitioner filed a timely administrative appeal but, prior to receiving a response to that appeal, he commenced this CPLR article 78 proceeding seeking to challenge the denial. Following the service of respondent’s answer, Supreme Court dismissed the proceeding for petitioner’s failure to exhaust his administrative remedies, after which petitioner sought to appeal to this Court. However, this Court has been advised that, as of September 28, 2013, petitioner has been released on parole. Because petitioner is no longer incarcerated and, accordingly, is no longer affected by the determination that denied his temporary work release application, this appeal must be dismissed as moot (see Matter of Gallo v New York State Temporary Release Program, 100 AD3d 1165, 1166 [2012]; Matter of Shell v New York State Dept. of Corrections Temporary Release Program, 26 AD3d 537, 537 [2006]).

Rose, J.P, Lahtinen and Stein, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.

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Bluebook (online)

111 A.D.3d 1043, 974 N.Y.S.2d 808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diaz-v-ledbetter-nyappdiv-2013.

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