Opinion
December 31, 1997
Present — Denman, P.J., Lawton, Wisner, Balio and Boehm, JJ.
Appeal unanimously dismissed without costs. Memorandum: On three occasions, respondent's mailroom personnel at Attica Correctional Facility (Attica) opened petitioner's privileged mail in violation of 7 NYCRR 721.3 (b) (1) (iii) (a). While at Attica, petitioner commenced this CPLR article 78 proceeding seeking an order directing that respondent's personnel cease opening his privileged mail outside of his presence. Supreme Court dismissed the petition.
Because petitioner has been transferred to another correctional facility, his mail will no longer be opened at Attica. Therefore, he is no longer aggrieved and his appeal is moot ( see, Matter of Applegate v. Coughlin, 226 A.D.2d 848, lv denied 88 N.Y.2d 810; Matter of Garcia v. Kuhlmann, 205 A.D.2d 1025; Matter of Cortez v. Wilmot, 115 A.D.2d 140). We reject the contention of petitioner that the facts of this controversy bring it within an exception to the mootness doctrine ( see, Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715; Matter of Garcia v. Kuhlmann, supra, at 1026-1027). The improper opening of petitioner's mail at the Attica mailroom will not be repeated because petitioner has been transferred. Further, the opening of privileged mail is not an issue that typically evades review because the grievance process is available to petitioner at any correctional facility to which he may be transferred. Moreover, the improper opening of petitioner's mail on three occasions does not present a substantial and novel issue.
Finally, because the material appended to petitioner's brief is not part of the record, we have not considered it ( see, Fisk v. Slye, 234 A.D.2d 983). (Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J. — CPLR art 78.)