Matter of Benitez v Fischer

Matter of Matter of Benitez v Fischer 2014 NY Slip Op 04829 Decided on June 26, 2014 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: June 26, 2014
517546

[*1]In the Matter of HENRY BENITEZ, Petitioner,

v

BRIAN S. FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: May 2, 2014
Before: McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ.

Henry Benitez, Romulus, 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 Franklin County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, commenced this proceeding challenging a disciplinary determination finding him guilty of drug use. The Attorney General has informed this Court that the determination at issue has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the mandatory surcharge has been returned to his inmate account. Although not referenced in the letter from the Attorney General, we note that "'any loss of good time incurred by petitioner as a result of the determination should be restored'" (Matter of Canales-Sanchez v Schneiderman, 107 AD3d 1258, 1258-1259 [2013], quoting Matter of Pereira v Fischer, 87 AD3d 1192, 1192 [2011]). Otherwise, petitioner has received all the relief to which he is entitled and the petition must be dismissed as moot (see Matter of Canales-Sanchez v Schneiderman, 107 AD3d at 1259; Matter of Marcial v Fischer, 96 AD3d 1245, 1246 [2012]).

McCarthy, J.P., Garry, Rose, Lynch and Devine, JJ., concur.

ADJUDGED that the petition is dismissed, as moot, without costs.