| Matter of Mathie v Selsky |
| 2007 NY Slip Op 09185 [45 AD3d 1169] |
| November 21, 2007 |
| Appellate Division, Third Department |
| In the Matter of Michael Mathie, IV, Appellant, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
Peters, J. Appeals (1) from a judgment of the Supreme Court (Kavanagh, J.), entered March1, 2005 in Albany County, which, in a proceeding pursuant to CPLR article 78, grantedrespondents' motion to dismiss the petition, and (2) from an order of said court, entered October16, 2006 in Albany County, which denied petitioner's motion for reargument.
Petitioner was found guilty of violating certain prison disciplinary rules following a July 21,2004 tier III hearing, but the determination was later reversed on administrative appeal. InOctober 2004, he commenced this CPLR article 78 proceeding seeking to have all references tothe reversed determination and hearing expunged from his institutional record. Respondents, inturn, moved to dismiss the proceeding on the ground that the necessary expungement had beenconducted and that the proceeding was, therefore, moot. In opposition to the motion, petitionerpointed to various documents he obtained through a November 2004 request under the Freedomof Information Law (see Public Officers Law art 6 [hereinafter FOIL]), which hemaintained had not been properly expunged. Upon concluding that none of the documentscontained improper references, Supreme Court dismissed the petition. Thereafter, petitionermade additional FOIL [*2]requests and obtained furtherdocuments which he submitted in support of a motion to reargue and/or renew. Supreme Courtdenied the motion. Petitioner subsequently moved pursuant to CPLR 5015 (a) (3) to vacate theprior judgment and order on grounds of fraud, misrepresentation and misconduct. Supreme Courttreated the motion as one for reargument and denied the same. Petitioner appeals from thejudgment dismissing his petition as well the second order denying his motion, and these appealshave been consolidated.
Respondents concede that the documents that petitioner obtained through his FOIL requests,namely, the July and October 2004 quarterly review worksheets and the July 2004 transferrequest, contain improper references to the reversed disciplinary determination and hearing, andthat such references should have been redacted. Respondents have submitted recentcorrespondence from the Department of Correctional Services at the correctional facility wherepetitioner is incarcerated indicating that petitioner's institutional file has been thoroughlyreviewed and no longer contains any references to the determination or hearing at issue. In viewof this, and given that petitioner has been granted all the relief to which he is entitled, the appealsmust be dismissed as moot (see Matterof Roman v Goord, 41 AD3d 1102 [2007]; Matter of Kalwasinski v Goord, 30 AD3d 940 [2006]). Althoughpetitioner also seeks vacatur of a February 7, 2006 disciplinary determination and takes issuewith the denial of his request to serve on the inmate liaison committee, his removal from hisprison job and a required submission to urinalysis testing, any relief to be granted in connectionwith these actions is properly the subject of a separate CPLR article 78 proceeding (see e.g.Matter of Brown v Goord, 290 AD2d 901, 902 [2002]). Petitioner's request forreimbursement of disbursements incurred in connection with this proceeding, however, isanother matter. The disbursement forms contained in the record establish that petitioner incurredexpenses of $20.32. Under the circumstances presented, petitioner should be permitted to recoupthese expenses (see Matter of Mack vSmith, 32 AD3d 599 [2006]; Matter of Simmonds v Selsky, 21 AD3d 1166 [2005]). Petitioner'srequest for costs pursuant to CPLR 8101 and sanctions is denied.
Cardona, P.J., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the appeals aredismissed, as moot, without costs, but with disbursements in the amount of $20.32.