Opinion
2011-09-15
In the Matter of George PEREIRA, Petitioner,v.Brian FISCHER, as Commissioner of Correctional Services, Respondent.
George Pereira, Malone, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
Petitioner commenced this CPLR article 78 proceeding seeking to set aside the guilty finding, expunge any reference to the matter from his records and restore *510 his good time credit. The Attorney General has advised this Court that the determination at issue has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the $5 mandatory surcharge has been refunded to petitioner's inmate account. The Attorney General does not, however, indicate whether petitioner's loss of good time has been restored. As petitioner is entitled to such relief upon reversal of the determination ( see e.g. Matter of DeVivo v. Selsky, 52 A.D.3d 1009, 1010, 860 N.Y.S.2d 239 [2008]; Matter of Beyah v. LeFevre, 142 A.D.2d 829, 530 N.Y.S.2d 1010 [1988]; Matter of Gonzalez v. Jones, 115 A.D.2d 849, 850–851, 495 N.Y.S.2d 802 [1985] ), any loss of good time incurred by petitioner as a result of the determination should be restored. The proceeding is otherwise moot ( see Matter of Charles v. Bezio, 80 A.D.3d 975, 913 N.Y.S.2d 925 [2011]; Matter of Murphy v. Boucaud, 78 A.D.3d 1417, 910 N.Y.S.2d 693 [2010] ).
ADJUDGED that the petition is dismissed, as moot, without costs.
SPAIN, J.P., ROSE, KAVANAGH, STEIN and EGAN JR., JJ., concur.