Pereira v. Fischer

Appellate Division of the Supreme Court of New York

Pereira v. Fischer

87 A.D.3d 1192, 929 N.Y.2d 509

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 15, 2011

StatusPublished

Cited by7 cases

This text of 87 A.D.3d 1192 (Pereira v. Fischer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pereira v. Fischer, 87 A.D.3d 1192, 929 N.Y.2d 509 (N.Y. Ct. App. 2011).

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Opinion

Petitioner commenced this CPLR article 78 proceeding seeking to set aside the guilty finding, expunge any reference to the matter from his records and restore his good time credit. The Attorney General has advised this Court that the determination at issue has been administratively reversed, all references thereto have been expunged from petitioner’s institutional record and the $5 mandatory surcharge has been refunded to petitioner’s inmate account. The Attorney General does not, however, indicate whether petitioner’s loss of good time has been restored. As petitioner is entitled to such relief upon reversal of the determination (see e.g. Matter of DeVivo v Selsky, 52 AD3d 1009, 1010 [2008]; Matter of Beyah v LeFevre, 142 AD2d 829 [1988]; Matter of Gonzalez v Jones, 115 AD2d 849, 850-851 [1985]), any loss of good time incurred by petitioner as a result of the determination should be restored. The proceeding is otherwise moot (see Matter of Charles v Bezio, 80 AD3d 975 [2011]; Matter of Murphy v Boucaud, 78 AD3d 1417 [2010]).

Spain, J.E, Rose, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.

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Petitioner commenced this CPLR article 78 proceeding seeking to set aside the guilty finding, expunge any reference to the matter from his records and restore his good time credit. The Attorney General has advised this Court that the determination at issue has been administratively reversed, all references thereto have been expunged from petitioner’s institutional record and the $5 mandatory surcharge has been refunded to petitioner’s inmate account. The Attorney General does not, however, indicate whether petitioner’s loss of good time has been restored. As petitioner is entitled to such relief upon reversal of the determination (see e.g. Matter of DeVivo v Selsky, 52 AD3d 1009, 1010 [2008]; Matter of Beyah v LeFevre, 142 AD2d 829 [1988]; Matter of Gonzalez v Jones, 115 AD2d 849, 850-851 [1985]), any loss of good time incurred by petitioner as a result of the determination should be restored. The proceeding is otherwise moot (see Matter of Charles v Bezio, 80 AD3d 975 [2011]; Matter of Murphy v Boucaud, 78 AD3d 1417 [2010]).

Spain, J.E, Rose, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.

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Bluebook (online)

87 A.D.3d 1192, 929 N.Y.2d 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pereira-v-fischer-nyappdiv-2011.

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