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In the Matter of Timothy Foley v. Brian Fischer

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


December 23, 2010

IN THE MATTER OF TIMOTHY FOLEY, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 3, 2010

Before: Cardona, P.J., Spain, Rose, Malone Jr. and McCarthy, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding challenging a prison disciplinary determination. The Attorney General has advised this Court that the determination at issue has been administratively reversed and that all references thereto have been expunged from petitioner's institutional record. Given that petitioner has received all the relief to which he is entitled, the matter must be dismissed as moot (see Matter of Adams v Goord, 45 AD3d 940, 940 [2007]; Matter of Zaire v West, 27 AD3d 810, 811 [2006]). Notwithstanding his request, petitioner is not entitled to be transferred to the correctional facility in which he was housed prior to the disciplinary determination (see Matter of Hernandez v Goord, 279 AD2d 919 [2001]).

Cardona, P.J., Spain, Rose, Malone Jr. and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20101223

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