Opinion
May 8, 1989
Appeal from the Supreme Court, Dutchess County (Cowhey, J.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the determination is annulled, the charges are dismissed, and the respondents are directed to expunge from the petitioner's institutional record all reference to the charges underlying the Superintendent's proceeding in question.
Pursuant to 7 NYCRR 251-5.1 (a), a Superintendent's proceeding should have been commenced within seven days following the petitioner's incarceration in a special housing unit unless an extension was authorized by the respondent Commissioner of Correctional Services or his designee. On the eleventh day of the petitioner's confinement in the special housing unit, the respondent Scully applied for and received a second extension. The second extension was invalid in that it was sought and obtained after the first extension had expired, while the petitioner was still confined in the special housing unit.
Under the circumstances, the determination must be annulled, and all reference to the Superintendent's proceeding in the petitioner's institutional record must be expunged (see, Matter of Brito v Sullivan, 141 A.D.2d 819; Matter of Coley v Sullivan, 126 A.D.2d 641; People ex rel. De Fulmer v Scully, 110 A.D.2d 671, 672, appeal dismissed 65 N.Y.2d 925).
In light of this determination, we need not consider the petitioner's remaining contentions. Mollen, P.J., Kunzeman, Spatt and Rosenblatt, JJ., concur.