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In the Matter of Henry Marcial v. Brian Fischer

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


June 21, 2012

IN THE MATTER OF HENRY MARCIAL, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER
OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered June 22, 2001 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

MEMORANDUM AND ORDER

Calendar Date: May 9, 2012

Before: Peters, P.J., Rose, Lahtinen, Malone Jr. and McCarthy, JJ.

Petitioner commenced this CPLR article 78 proceeding challenging a determination finding him guilty of violating certain prison disciplinary rules. After service of respondent's answer, Supreme Court dismissed the proceeding and this appeal ensued. The Attorney General has advised this Court that the disciplinary determination has been administratively reversed and that all references thereto have been expunged from petitioner's institutional record. Although petitioner also seeks to be reassigned to the status he enjoyed prior to the disciplinary determination, he is not entitled to such relief (see Matter of Hamilton v Bezio, 93 AD3d 1049 [2012]; Matter of Applegate v Fischer, 89 AD3d 1303, 1304 [2011]). He is, however, entitled to restoration of the loss of good time incurred as a result of the disciplinary determination (see Matter of Pereira v Fischer, 87 AD3d 1192 [2011]). The appeal is otherwise moot (see Matter of Hanson v Bezio, 79 AD3d 1569, 1570 [2010]; Matter of Edmonson v Fischer, 79 AD3d 1547, 1548 [2010]).

Peters, P.J., Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger

Clerk of the Court

20120621

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