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In the Matter of George Pereira v. Brian Fischer

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


September 15, 2011

IN THE MATTER OF GEORGE PEREIRA, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: July 27, 2011

Before: Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., 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 seeking to set aside the guilty finding, expunge any reference to the matter from his records and restore his good time credit. The Attorney General has advised this Court that the determination at issue has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the $5 mandatory surcharge has been refunded to petitioner's inmate account. The Attorney General does not, however, indicate whether petitioner's loss of good time has been restored. As petitioner is entitled to such relief upon reversal of the determination (see e.g. Matter of DeVivo v Selsky, 52 AD3d 1009, 1010 [2008]; Matter of Beyah v LeFevre, 142 AD2d 829 [1988]; Matter of Gonzalez v Jones, 115 AD2d 849, 850-851 [1985]), any loss of good time incurred by petitioner as a result of the determination should be restored. The proceeding is otherwise moot (see Matter of Charles v Bezio, 80 AD3d 975 [2011]; Matter of Murphy v Boucaud, 78 AD3d 1417 [2010]).

Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110915

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