Opinion
526933
05-30-2019
In the Matter of Jason MERCADO, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Barclay Damon LLP, Albany (Eric W. Dyer of counsel), for petitioner. Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Barclay Damon LLP, Albany (Eric W. Dyer of counsel), for petitioner.
Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey, Devine and Pritzker, JJ.
MEMORANDUM AND JUDGMENT
Devine, J. 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 finding petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of violating certain prison disciplinary rules. The Attorney General has advised this Court that the determination has been administratively reversed, all references thereto have been expunged from petitioner's institutional record and the mandatory $ 5 surcharge has been refunded to petitioner's inmate account. The Attorney General has represented that petitioner "will be reimbursed at the unemployed rate for the confinement time he served," as directed by the Department of Corrections and Community Supervision Directive No. 4802 (iii)(C)(4)(d), as requested in the petition. To the extent that petitioner seeks to be restored to the housing status and location that he enjoyed prior to the disciplinary determination, he is not entitled to such relief, as "inmates have no constitutional or statutory right to their prior housing or programming status" ( Matter of Adams v. Annucci , 167 A.D.3d 1125, 1126, 87 N.Y.S.3d 522 [2018] [internal quotation marks and citations omitted]; accord Matter of Morgan v. Venettozzi , 156 A.D.3d 1107, 1107, 65 N.Y.S.3d 474 [2017] ; see Correction Law § 23[1] ; see also Matter of Brooks v. Annucci , 149 A.D.3d 1434, 1435, 52 N.Y.S.3d 729 [2017] ). Petitioner's request for an award of counsel fees pursuant to CPLR article 86 must be made to the court of original instance (see CPLR 8601[b] ; Matter of Ortiz v. Fischer , 71 A.D.3d 1244, 1244, 894 N.Y.S.2d 924 [2010] ; Matter of McCrimmon v. Dowling , 229 A.D.2d 1029, 1030, 645 N.Y.S.2d 359 [1996] ). Given that petitioner has received all of the relief to which he is entitled, the petition must be dismissed as moot (see Matter of Cunningham v. Annucci , 168 A.D.3d 1340, 1340, 90 N.Y.S.3d 915 [2019] ; Matter of Williams v. Keyser , 167 A.D.3d 1202, 1202, 87 N.Y.S.3d 909 [2018] ).
Garry, P.J., Clark, Mulvey and Pritzker, JJ., concur.
ADJUDGED that the petition is dismissed, as moot, without costs.