Matter of Thousand v Kirkpatrick

Matter of Thousand v Kirkpatrick 2017 NY Slip Op 06585 Decided on September 21, 2017 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: September 21, 2017
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[*1]In the Matter of ROBERT THOUSAND, Petitioner,

v

MICHAEL KIRKPATRICK, as Superintendent of Clinton Correctional Facility, Respondent.

Calendar Date: August 7, 2017
Before: Peters, P.J., Garry, Rose, Clark and Rumsey, JJ.

Robert Thousand, Dannemora, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton 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 II determination finding him guilty of fighting. The Attorney General has advised this Court that the determination has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the mandatory $5 surcharge has been refunded to petitioner's inmate account. Additionally, "petitioner is not entitled to be restored to the status he enjoyed prior to the disciplinary determination" (Matter of West v Annucci, 134 AD3d 1379, 1380

[2015]). Accordingly, as petitioner has received all of the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Micolo v Kirkpatrick, 147 AD3d 1131, 1131 [2017]). As the record reflects that petitioner paid a reduced filing fee of $15 and he has requested a refund thereof, he is entitled to reimbursement of that sum (see Matter of Cendales v Sheahan, 146 AD3d 1260, 1261 [2017]).

Peters, P.J., Garry, Rose, Clark and Rumsey, JJ., concur.

ADJUDGED that the petition is dismissed, as moot, without costs, but with disbursements in the amount of $15.