Opinion
July 15, 1999
Appeal from a judgment of the Supreme Court (Keegan, J.), entered February 13, 1998 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition as moot.
Edmond Pena, New York City, appellant in person.
Eliot Spitzer, Attorney-General (Marlene O. Tuczinski of counsel), Albany, for respondent.
Before: MERCURE, J.P., CREW III, PETERS, CARPINELLO and GRAFFEO, JJ.
MEMORANDUM AND ORDER
Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of violating various prison disciplinary rules, including the rules prohibiting absconding from a temporary release program and violating the procedures and time limits of said program. Petitioner's guilt was affirmed upon his administrative appeal, prompting him to commence this CPLR article 78 proceeding raising various procedural challenges related to the conduct of the hearing. The relief requested by petitioner included annulment and expungement of any reference to these charges from his institutional records. Rather than serving an answer, respondent moved to dismiss the petition as moot based on the fact that petitioner was subsequently released to parole supervision. Supreme Court granted the motion and petitioner appeals, claiming that the matter is not moot due to possible adverse consequences that could accrue to him based upon the determination of guilt on his institutional record.
We reverse. Although respondent dismisses petitioner's concerns as speculative, we find, as we have in the past when confronted with this issue, that the challenge to the disciplinary determination cannot be considered moot despite the fact that petitioner has been released from custody, inasmuch as he "is entitled to have an institutional record free from improperly obtained findings of disciplinary rule violations" (Matter of Grant v. Senkowski, 146 A.D.2d 948, 949; see, Matter of Walker v. Senkowski, 260 A.D.2d 830, 831, 688 N.Y.S.2d 770, 771; see also, Matter of Crosson v. Coughlin, 197 A.D.2d 864, 865; cf., Matter of Alstranner v. Selsky, 238 A.D.2d 658; Matter of Montalvo v. Selsky, 219 A.D.2d 752; Matter of Boodro v. Coughlin, 142 A.D.2d 820). Thus, the petition must be reinstated and the matter remitted to Supreme Court to afford respondent the opportunity to answer the petition on the merits.
ORDERED that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court where respondent will be permitted to serve an answer within 20 days of the date of this court's decision.