Matter of Clark v. Annucci

2021 NY Slip Op 01471, 192 A.D.3d 1317, 140 N.Y.S.3d 423

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2021
• Docket: 531908
• Status: Published

Opinion

Matter of Clark v Annucci (2021 NY Slip Op 01471)

Matter of Clark v Annucci

2021 NY Slip Op 01471

Decided on March 11, 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: March 11, 2021

531908

[*1]In the Matter of Willie Clark, Petitioner,

v

Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: February 4, 2021
Before: Lynch, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

Willie Clark, Alden, 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 respondent finding petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination that found him guilty of violating a prison disciplinary rule. The Attorney General has advised this Court that the determination 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]). As the record does reflect that petitioner has paid a filing fee of $305, and he has requested reimbursement thereof, we grant petitioner's request for that amount.

Lynch, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.

ADJUDGED that the petition is dismissed, as moot, without costs, but with disbursements in the amount of $305.