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Gathers v. Artus

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 11, 2009

IN THE MATTER OF WILLIE GATHERS, PETITIONER,
v.
DALE ARTUS, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, RESPONDENT.

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.

Calendar Date: December 18, 2008

Before: Rose, J.P., Lahtinen, Malone Jr., Kavanagh and Stein, JJ.

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 three determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, commenced this CPLR article 78 proceeding seeking to annul three separate tier II disciplinary determinations, rendered in July 2007, September 2007 and October 2007, which found him guilty of violating numerous prison disciplinary rules.

Initially, with respect to the July 2007 determination, petitioner's challenge thereto is untimely given that he failed to commence this proceeding until after the applicable four-month statute of limitations had expired (see CPLR 217 [1]; Matter of Smith v Goord, 42 AD3d 839, 839 [2007]). Turning to the September 2007 determination, because petitioner has not advanced any arguments in his brief relative to that determination, he has abandoned any claims in connection therewith (see Matter of Whaley v Goord, 47 AD3d 1132, 1333 [2008]). Lastly, regarding the October 2007 determination, petitioner has already been afforded all of the relief to which he is entitled inasmuch as that determination was administratively reversed, all references thereto were expunged from petitioner's institutional record and the mandatory surcharge imposed was refunded to petitioner (see Matter of Arriaga v Smith, 55 AD3d 1115 [2008]). Accordingly, his challenge to that determination is moot.

Rose, J.P., Lahtinen, Malone Jr., Kavanagh and Stein, JJ., concur.

ADJUDGED that the July 2007 and September 2007 determinations are confirmed, without costs, and petition dismissed to that extent.

ADJUDGED that the petition, to the extent that it challenges the October 2007 determination, is dismissed, as moot, without costs.

20090211

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