State of New York Supreme Court, Appellate Division Third Judicial Department
September 20, 2012
IN THE MATTER OF DAVID A. BURR, APPELLANT,
CHAIRPERSON, APPEALS UNIT, DIVISION OF PAROLE, RESPONDENT.
Appeal from a judgment of the Supreme Court (Melkonian, J.), entered February 2, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.
MEMORANDUM AND ORDER
Calendar Date: July 30, 2012
Before: Mercure, J.P., Rose, Malone Jr., McCarthy and Garry, JJ.
Petitioner commenced this CPLR article 78 proceeding challenging a November 2009 determination of the Board of Parole that denied his request for discretionary parole release and ordered him held for an additional 24 months. While this proceeding was pending, petitioner reappeared before the Board in November 2011 and his request for parole was again denied. As a result, respondent moved to dismiss the petition as moot. Supreme Court granted the motion and this appeal ensued.
Contrary to petitioner's argument, his intervening reappearance before the Board following the commencement of the subject CPLR article 78 proceeding renders his appeal moot (see Matter of Kalwasinski v New York State Div. of Parole, 36 AD3d 1200 , lv denied 8 NY3d 811 ; Matter of Almonte v New York State Div. of Parole, 2 AD3d 1239, 1240 , appeal dismissed 2 NY3d 758 ). Moreover, Supreme Court correctly held that the exception to the mootness doctrine is inapplicable to petitioner's circumstances (see Matter of Marcelin v Evans, 86 AD3d 880, 881 ).
Mercure, J.P., Rose, Malone Jr., McCarthy and Garry, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger
Clerk of the Court
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