Oppenheimer v. Griffin

Appellate Division of the Supreme Court of New York

Oppenheimer v. Griffin

123 A.D.3d 1214, 998 N.Y.S.2d 256

Appellate Division of the Supreme Court of the State of New York·Decided December 4, 2014·Published·Cited by 7 cases

Opinion

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 Superintendent of Eastern Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this proceeding to challenge a tier II prison disciplinary determination finding him guilty of disobeying a direct order and violating frisk procedures. The Attorney General has informed this Court that the determination at issue has been administratively reversed. As such, the matter is moot and the petition is dismissed (see Matter of Jackson v Fischer, 57 AD3d 1122, 1122-1123 [2008]; Matter of Gonzalez v Selsky, 20 AD3d 833 [2005]). Inasmuch as the record does not reflect that petitioner was refunded the mandatory $5 surcharge (see 7 NYCRR 253.7 [b]), he should be permitted to recoup that expense (see Matter of Mastropietro v Fischer, 81 AD3d 1022, 1022 [2011]).

Peters, P.J., Stein, Garry, Lynch and Clark, 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.

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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 Superintendent of Eastern Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this proceeding to challenge a tier II prison disciplinary determination finding him guilty of disobeying a direct order and violating frisk procedures. The Attorney General has informed this Court that the determination at issue has been administratively reversed. As such, the matter is moot and the petition is dismissed (see Matter of Jackson v Fischer, 57 AD3d 1122, 1122-1123 [2008]; Matter of Gonzalez v Selsky, 20 AD3d 833 [2005]). Inasmuch as the record does not reflect that petitioner was refunded the mandatory $5 surcharge (see 7 NYCRR 253.7 [b]), he should be permitted to recoup that expense (see Matter of Mastropietro v Fischer, 81 AD3d 1022, 1022 [2011]).

Peters, P.J., Stein, Garry, Lynch and Clark, 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.

Oppenheimer v. Griffin, 123 A.D.3d 1214, 998 N.Y.S.2d 256 (N.Y. Ct. App. 2014).

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