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Ortiz v. Fischer

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


March 11, 2010

IN THE MATTER OF HAROLD ORTIZ, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: January 25, 2010

Before: Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ.

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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. The Attorney General has advised this Court that the determination has been administratively reversed and all references thereto expunged from petitioner's institutional record. Accordingly, as petitioner has received all the relief to which he is entitled, this matter is dismissed as moot (see Matter of Hart v Fischer, 60 AD3d 1226, 1226 [2009]). Regarding petitioner's request for an award of counsel fees and other expenses pursuant to CPLR article 86, such an application must be made in the court of original instance (see Matter of McCrimmon v Dowling, 229 AD2d 1029, 1030 [1996]; Matter of Sutherland v Glennon, 224 AD2d 819, 819 [1996]) and comply with the procedural requirements of CPLR 8601 (b).

Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur.

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

20100311

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