Moore v. Goord

31 A.D.3d 1075, 819 N.Y.S.2d 206

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 27, 2006
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Lamont, J.), entered July 14, 2005 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

In November 2004, petitioner commenced this CPLR article 78 proceeding challenging a determination removing him from a temporary work release program. Respondent subsequently obtained two adjournments to file responsive papers and to locate the transcript of the temporary release hearing. Because the audiotape of the hearing could not be located, petitioner was given a rehearing on April 11, 2005, while this proceeding was pending. At the conclusion of the rehearing, petitioner was again removed from participation in the temporary work release program. Thereafter, respondent moved to dismiss the petition as moot based upon the disposition made as a result of the rehearing. Supreme Court granted the motion and this appeal ensued.

Initially, we note that the Temporary Release Committee was without authority to sua sponte order a rehearing to cure a procedural defect after a final determination had already been made and this appeal was pending (see Matter of Preston v Coughlin, 164 AD2d 101, 102-103 [1990]). Nevertheless, a de novo hearing was the only relief to which petitioner would have been entitled upon annulment of the original determination (see Matter of Bell v Recore, 276 AD2d 983, 983 [2000]; see also Matter of Malik v Coombe, 235 AD2d 872, 873 [1997]). Inasmuch as petitioner was already afforded such relief, Supreme Court properly dismissed the petition as moot (see Matter of Bell v Recore, supra; Prescott v Coughlin, 221 AD2d 785 [1995]).

Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.