| Matter of Gathers v Artus |
| 2009 NY Slip Op 01056 [59 AD3d 795] |
| February 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of Willie Gathers, Petitioner, v Dale Artus, asSuperintendent of Clinton Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review three determinations of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, commenced this CPLR article 78 proceeding seeking to annul threeseparate tier II disciplinary determinations, rendered in July 2007, September 2007 and October2007, which found him guilty of violating numerous prison disciplinary rules.
Initially, with respect to the July 2007 determination, petitioner's challenge thereto isuntimely given that he failed to commence this proceeding until after the applicable four-monthstatute of limitations had expired (see CPLR 217 [1]; Matter of Smith v Goord, 42 AD3d 839, 839 [2007]). Turning tothe September 2007 determination, because petitioner has not advanced any arguments in hisbrief relative to that determination, he has abandoned any claims in connection therewith (see Matter of Whaley v Goord, 47AD3d 1132, 1133 [2008]). Lastly, regarding the October 2007 determination, petitioner hasalready been afforded all of the relief to which he is entitled inasmuch as that determination wasadministratively reversed, all references thereto were expunged from petitioner's institutionalrecord and the mandatory surcharge [*2]imposed was refunded topetitioner (see Matter of Arriaga vSmith, 55 AD3d 1115 [2008]). Accordingly, his challenge to that determination is moot.
Rose, J.P., Lahtinen, Malone Jr., Kavanagh and Stein, JJ., concur. Adjudged that the July2007 and September 2007 determinations are confirmed, without costs, and petition dismissed tothat extent. Adjudged that the petition, to the extent that it challenges the October 2007determination, is dismissed, as moot, without costs.