Matter of Schwartz v Dennison

2007 NYSlipOp 03763

May 1, 2007

Appellate Division, First Department

As corrected through Wednesday, July 11, 2007

In the Matter of Jerrold Schwartz, Respondent, v Robert Dennison, as Chairman of the New York State Board of Parole, Appellant.

—[*1]Andrew M. Cuomo, Attorney General, New York (Laura R. Johnson of counsel), for appellant.

Perlmutter & Gimpel, PLLC, New York (Mark Gimpel of counsel), for respondent.

Appeal from judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered April 27, 2006, granting the petition to annul the denial of parole and remand for a de novo hearing before a new panel, and denying respondent's cross motion to change venue, unanimously dismissed as moot, without costs, the judgment granting the petition vacated, and the proceeding dismissed.

The instant appeal is moot and must be dismissed, since petitioner has reappeared before the Board of Parole and his request for release on parole has again been denied (Matter of Smith v Donohue, 243 AD2d 797 [1997]; Matter of Bates v Russi, 212 AD2d 602 [1995], lv denied 85 NY2d 811 [1995]). Were we to consider the merits of this appeal, we would find that venue was improperly laid (see Matter of Ramirez v Dennison, 39 AD3d 310 [2007]). Because the petition should not have been granted, the judgment should be vacated and the CPLR article 78 proceeding dismissed (see Matter of Ruskin v Safir, 257 AD2d 268 [1999]). Concur—Mazzarelli, J.P., Williams, Buckley, Gonzalez and Sweeny, JJ.