Matter of Briggs v. Venettozzi

2021 NY Slip Op 00357, 136 N.Y.S.3d 797, 190 A.D.3d 1186

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 2021
• Docket: 532073
• Status: Published

Opinion

Matter of Briggs v Venettozzi (2021 NY Slip Op 00357)

Matter of Briggs v Venettozzi

2021 NY Slip Op 00357

Decided on January 21, 2021

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 21, 2021

532073

[*1]In the Matter of Wade Briggs, Petitioner,

v

Donald Venettozzi, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Calendar Date: January 4, 2021
Before: Garry, P.J., Mulvey, Aarons, Reynolds Fitzgerald and Colangelo, JJ.

Wade Briggs, Woodbourne, petitioner pro se.

Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of violating certain prison disciplinary rules. The Attorney General has advised this Court that the determination at issue has been administratively reversed and all references thereto have been expunged from petitioner's institutional record. Given that petitioner has received all the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Louime v Venettozzi, 186 AD3d 1870, 1871 [2020]; Matter of Kennedy v Annucci, 185 AD3d 1372, 1373 [2020]). Inasmuch as the record does not reflect that the mandatory $5 surcharge was refunded to petitioner's account (see 7 NYCRR 253.7 [b]), he should be permitted to recoup that expense (see Matter of Dibble v Venettozzi, 181 AD3d 1139, 1139 [2020]). We also note that the loss of good time incurred as part of the penalty imposed should be restored (see Matter of Dacey v Annucci, 173 AD3d 1585, 1585-1586 [2019]).

Garry, P.J., Mulvey, Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.

ADJUDGED that the petition is dismissed, as moot, without costs, but with a refund of the mandatory surcharge in the amount of $5.