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In the Matter of Phillip P. v. Washington County Support

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


February 9, 2012

IN THE MATTER OF PHILLIP P. BATTEASE, APPELLANT,
v.
WASHINGTON COUNTY SUPPORT COLLECTION UNIT ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (McKeighan, J.), entered March 19, 2010 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

The opinion of the court was delivered by: Mercure, Acting P.J.,

MEMORANDUM AND ORDER

Calendar Date: December 12, 2011

Before: Mercure, Acting P.J., Spain, Malone Jr., Stein and Garry, JJ.

By order to show cause, petitioner commenced this CPLR article 78 proceeding challenging the legality of an income execution order pertaining to unpaid child support that was placed against his inmate account at respondent Five Points Correctional Facility in Seneca County and issued by respondent Washington County Support Collection Unit (hereinafter the SCU). Respondents moved to dismiss the petition for failure to state a cause of action. Supreme Court granted the motion and this appeal ensued.

By his own admission, petitioner has been transferred to another correctional facility and the income execution order placed against his inmate account at Five Points is no longer in effect. In view of this, the appeal is moot and must be dismissed (see e.g. Matter of Abreu v White, 85 AD3d 1451 [2011]; Matter of Rush v Bellamy, 71 AD3d 1298 [2010]). To the extent that petitioner seeks to recover monies withheld while he was at Five Points and deposited with the SCU, his remedy is to seek review before the SCU and, if necessary, after exhausting his administrative remedies, commence a CPLR article 78 proceeding (see CPLR 5241 [e]; Matter of Monroe County Dept. of Social Servs. v Walker, 178 AD2d 1012 [1991]). Petitioner has not demonstrated that he has exhausted his administrative remedies before the SCU. Lastly, his claim that he should not have been required to pay a $50 reduced filing fee is not properly before us as it is not part of the judgment from which he appeals.

Spain, Malone Jr., Stein and Garry, JJ., concur.

ORDERED that the appeal is dismissed, as moot, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120209

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