Matter of Frantz v Smith

Matter of Frantz v Smith 2016 NY Slip Op 01711 Decided on March 10, 2016 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: March 10, 2016
521002

[*1]In the Matter of JEAN L. FRANTZ, Appellant,

v

JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, Respondent.

Calendar Date: January 19, 2016
Before: Peters, P.J., McCarthy, Garry and Clark, JJ.

Jean L. Frantz, Pine City, appellant pro se.

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

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Cahill, J.), entered March 27, 2015 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain disciplinary rules.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding to challenge a tier II disciplinary determination finding him guilty of refusing a direct order and creating a disturbance. Supreme Court dismissed the petition, prompting this appeal. The Attorney General has informed 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. In view of this, and given that petitioner has received all the relief to which he is entitled, this appeal has been rendered moot and must be dismissed (see Matter of Lashway v Fischer, 112 AD3d 1172, 1172 [2013]). Petitioner's request for costs and expenses incurred must be made by way of application to the court of original instance (see CPLR 8601 [b]; Matter of Ferguson v Fischer, 115 AD3d 1105, 1106 [2014]).

Peters, P.J., McCarthy, Garry and Clark, JJ., concur.

ORDERED that the appeal is dismissed, as moot, without costs.