Gibson v. McGinnis

Appellate Division of the Supreme Court of New York

Gibson v. McGinnis

261 A.D.2d 745, 691 N.Y.S.2d 586, 1999 N.Y. App. Div. LEXIS 5315

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

DecidedMay 13, 1999

StatusPublished

This text of 261 A.D.2d 745 (Gibson v. McGinnis) 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

Gibson v. McGinnis, 261 A.D.2d 745, 691 N.Y.S.2d 586, 1999 N.Y. App. Div. LEXIS 5315 (N.Y. Ct. App. 1999).

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Opinion

—Appeal from a judgment of the Supreme Court (Ellison, J.), entered September 15, 1998 in Chemung County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for failure to state a cause of action.

Following a tier III disciplinary hearing at which petitioner pleaded guilty to creating a disturbance, petitioner was found guilty of three additional charges of violating various prison disciplinary rules. On administrative appeal, all charges, [746]*746except that of creating a disturbance, were dismissed and the penalty was modified accordingly. Petitioner commenced this CPLR article 78 proceeding challenging the disciplinary determination. Upon motion by respondents, the petition was dismissed for failure to state a cause of action. Petitioner’s contention on appeal, that he was denied the right to call a witness at the hearing, relates to the charges that were administratively reversed. Inasmuch as petitioner has received all the relief to which he is entitled and is no longer aggrieved, we find that Supreme Court properly dismissed the proceeding (see, Matter of Wong v Coughlin, 182 AD2d 926, 927; Matter of Taylor v Kennedy, 159 AD2d 827).

Mikoll, J. P., Mercure, Yesawich Jr., Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Ellison, J.), entered September 15, 1998 in Chemung County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition for failure to state a cause of action.

Following a tier III disciplinary hearing at which petitioner pleaded guilty to creating a disturbance, petitioner was found guilty of three additional charges of violating various prison disciplinary rules. On administrative appeal, all charges, [746]*746except that of creating a disturbance, were dismissed and the penalty was modified accordingly. Petitioner commenced this CPLR article 78 proceeding challenging the disciplinary determination. Upon motion by respondents, the petition was dismissed for failure to state a cause of action. Petitioner’s contention on appeal, that he was denied the right to call a witness at the hearing, relates to the charges that were administratively reversed. Inasmuch as petitioner has received all the relief to which he is entitled and is no longer aggrieved, we find that Supreme Court properly dismissed the proceeding (see, Matter of Wong v Coughlin, 182 AD2d 926, 927; Matter of Taylor v Kennedy, 159 AD2d 827).

Mikoll, J. P., Mercure, Yesawich Jr., Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

261 A.D.2d 745, 691 N.Y.S.2d 586, 1999 N.Y. App. Div. LEXIS 5315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-mcginnis-nyappdiv-1999.

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