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In the Matter of Michael Lopez v. Brian Fischer

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


January 17, 2013

IN THE MATTER OF MICHAEL LOPEZ, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: December 17, 2012

Before: Mercure, J.P., Rose, Spain, Garry 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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner commenced this CPLR article 78 proceeding to challenge a tier III disciplinary determination finding him guilty of drug use. The Attorney General has advised this Court that the determination has since been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the $5 mandatory surcharge has been refunded to his inmate account. Petitioner has thus been afforded all the relief to which he is entitled and, as such, the petition is dismissed as moot (see Matter of Peterson v Prack, 100 AD3d 1124, 1124 [2012]; Matter of Applegate v Fischer, 89 AD3d 1303, 1304 [2011]).

Mercure, J.P., Rose, Spain, Garry and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130117

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