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Welch v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


December 31, 2009

IN THE MATTER OF ELBERT WELCH, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Mercure, J.P., Peters, Spain, Malone Jr. and Kavanagh, JJ.

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 certain prison disciplinary rules.

Petitioner, an inmate, commenced this CPLR article 78 proceeding seeking to annul a tier III disciplinary determination which found him guilty of interference with an employee, lying and providing unauthorized legal assistance to another inmate. The Attorney General has advised this Court that the determination at issue has been administratively reversed and all references thereto have been expunged from petitioner's institutional record. To the extent that petitioner seeks to be restored to the status he enjoyed prior to the disciplinary hearing, "inmates have no statutory or constitutional right to their prior housing or programming status" (Matter of Jackson v Coughlin, 199 AD2d 704, 704 [1993]; see Matter of Thomas v Selsky, 286 AD2d 535, 535 [2001], appeal dismissed 97 NY2d 637 [2001]). Accordingly, inasmuch as petitioner has received all the relief to which he was entitled, the proceeding is dismissed as moot (see Matter of Mosher v Goord, 300 AD2d 726, 726 [2002]).

Mercure, J.P., Peters, Spain, Malone Jr. and Kavanagh, JJ., concur.

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

20091231

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