Herouard v. Schramm

294 A.D.2d 688, 741 N.Y.S.2d 459, 2002 N.Y. App. Div. LEXIS 4788

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 2002
• Status: Published

Opinion

—Appeals (1) from a judgment of the Supreme Court (Kane, J.), entered October 18, 2001 in Albany County, which, inter alia, upon reconsideration, granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Commissioner of Correctional Services finding him guilty of violating a prison disciplinary rule, and (2) from an order of said court, entered December 4, 2001 in Albany County, which denied petitioner’s application pursuant to CPLR 8601 for litigation-related expenses.

Petitioner commenced this proceeding to obtain review of an administrative determination finding him guilty of violating the prison disciplinary rule that prohibits harassment. Supreme Court ultimately granted petitioner’s application, annulling the administrative determination and remitting the matter to the Department of Correctional Services for a new hearing. The determination finding petitioner guilty of harassment was thereafter administratively reversed and all references to the charge or the previous disciplinary hearing were expunged from petitioner’s prison records.

Petitioner seeks this Court’s review of that part of Supreme Court’s judgment which remitted his disciplinary proceeding for a new administrative hearing.

* As the charge that gave rise to the proceeding is no longer pending against petitioner, there is no need for a new hearing. Petitioner is no longer an aggrieved party, having already received the relief sought in his petition (see, Matter of Alstranner v Selsky, 238 AD2d 658, 658). This appeal is, accordingly, dismissed as moot (see, Matter of Smalley v Hogue, 278 AD2d 753; Matter of Soto v Coughlin, 212 AD2d 925).

Cardona, P.J., Crew III, Spain, Carpinello and Rose, JJ., concur. Ordered that the appeals are dismissed, as moot, without costs.

By letter to the Clerk of this Court, dated January 22, 2002, petitioner informally withdrew his opposition to Supreme Court’s order, entered December 4, 2001, on the ground that Supreme Court has since reversed itself and granted his application for litigation-related expenses.