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In the Matter of Manuel Nunez v. Thomas Lavalley

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


May 24, 2012

IN THE MATTER OF MANUEL NUNEZ, PETITIONER,
v.
THOMAS LAVALLEY, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 4, 2012

Before: Mercure, J.P., Rose, Malone Jr., Stein and Garry, 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 a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding to challenge a tier II prison disciplinary determination. 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 mandatory $5 surcharge has been refunded to petitioner's inmate account. In view of this, and given that petitioner has received all the relief to which he is entitled, the matter must be dismissed as moot (see Matter of Torres v Bezio, 92 AD3d 1053 [2012]; Matter of Calix v Brown, 92 AD3d 1001 [2012]). While petitioner seeks to be relocated to the honor block where he was housed prior to the disciplinary determination, "'inmates have no constitutional or statutory rights to their prior housing or programming status'" (Matter of Valdez v Fischer, 85 AD3d 1264, 1265 [2011], quoting Matter of Rhodes v Smith, 78 AD3d 1391, 1391 [2010]). Furthermore, his request for declaratory relief was not included in his petition and, in any event, is not authorized by CPLR 7804 (g) (see Matter of Applegate v Heath, 88 AD3d 699, 700 [2011]).

Mercure, J.P., Rose, Malone Jr., Stein and Garry, JJ., concur.

ADJUDGED that the petition is dismissed, as moot, without costs, but with disbursements in the amount of $102.14.

ENTER:

Robert D. Mayberger Clerk of the Court

20120524

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