Matter of Simmons v Kirkpatrick
2016 NY Slip Op 06138 [142 AD3d 1245]
September 22, 2016
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, November 2, 2016


[*1]
 In the Matter of Derek Simmons, Petitioner, v Michael Kirkpatrick, as Superintendent of Clinton Correctional Facility, Respondent.

Derek Simmons, Dannemora, petitioner pro se.

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

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 certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding to challenge a tier II determination finding him guilty of violating certain prison disciplinary rules. The Attorney General has advised this Court that the determination has since 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 been granted all the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Ballard v Racette, 140 AD3d 1428, 1428 [2016]).[FN*]

[*2] McCarthy, J.P., Garry, Egan Jr., Lynch and Devine, JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.

Footnotes


Footnote *:In his reply brief, petitioner contends that this Court's 2015 memorandum and order directing expungement of a 2013 determination finding him guilty of creating a disturbance has not been complied with (Matter of Simmons v LaValley, 130 AD3d 1126, 1127 [2015]). While petitioner appears to be correct, expungement of a prior determination is not a proper remedy in this proceeding (see CPLR 7803 [1]).