Harris v. Coughlin

143 A.D.2d 1018, 533 N.Y.S.2d 604, 1988 N.Y. App. Div. LEXIS 10776

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1988
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review certain determinations of the respondents denying the petitioner’s request to participate in a temporary release program, the petitioner appeals from a judgment of the Supreme Court, Richmond County (Kuffner, J.), dated April 24, 1987, which dismissed the petition "with leave to commence a new proceeding after exhaustion of the administrative appeals within the time prescribed by law”.

Ordered that the appeal is dismissed as academic, without costs or disbursements.

Contrary to the Supreme Court’s conclusion, and as noted by the respondents, where the temporary release committee has denied the inmate’s temporary release application and, upon appeal to the central office, the denial is upheld, no further administrative appeal is provided for by the Department of Correctional Services (7 NYCRR 1900.6). The inmate may then commence a proceeding pursuant to CPLR article 78 for judicial review of the denial. Since the petitioner herein followed the proper procedure, it was error for the Supreme Court to dismiss the petition upon the ground that there was a failure to exhaust administrative remedies.

Nevertheless, the remittal of this proceeding to the Supreme Court is not warranted. The petitioner, in his petition, requested, in relevant part, an opportunity to reapply for temporary release. He became eligible to reapply for temporary release on November 15, 1987. Accordingly, this proceeding has been rendered academic. Bracken, J. P., Lawrence, Weinstein and Balletta, JJ., concur.