Matter of McGee v Smith

Matter of McGee v Smith 2015 NY Slip Op 06471 Decided on August 6, 2015 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: August 6, 2015
520186

[*1]In the Matter of TONY McGEE, Petitioner,

v

R.K. SMITH, as Custodial Maintenance Teacher, et al., Respondents.

Calendar Date: June 8, 2015
Before: Lahtinen, J.P., Rose, Lynch and Clark, JJ.

Tony McGee, Comstock, petitioner pro se.

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

MEMORANDUM AND JUDGMENT

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

Petitioner commenced this CPLR article 78 proceeding to challenge a tier II determination that found him guilty of being out of place and a movement regulation violation. 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 his inmate account. Petitioner is not entitled to be restored to the status that he enjoyed prior to the disciplinary determination (see Matter of Ponder v Annucci, 128 AD3d 1255, 1255 [2015]; Matter of Raduns v Prack,

122 AD3d 995, 995-996 [2014]). In view of this, and given that petitioner has received all of the relief to which he is entitled, the matter is dismissed as moot (see Matter of McCaskell v Department of Corr. & Community Supervision, 128 AD3d 1208, 1208-1209 [2015]; Matter of Bain v Annucci, 127 AD3d 1533, 1533 [2015]).

Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.

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