Opinion
2014-12-4
In the Matter of Antonio OPPENHEIMER, Petitioner, v. T. GRIFFIN, as Superintendent of Eastern Correctional Facility, et al., Respondents.
Antonio Oppenheimer, Napanoch, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Antonio Oppenheimer, Napanoch, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: PETERS, P.J., STEIN, GARRY, LYNCH and CLARK, JJ.
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 Superintendent of Eastern Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this proceeding to challenge a tier II prison disciplinary determination finding him guilty of disobeying a direct order and violating frisk procedures. The Attorney General has informed this Court that the determination at issue has been administratively reversed. As such, the matter is moot and the petition is dismissed ( see Matter of Jackson v. Fischer, 57 A.D.3d 1122, 1122–1123, 868 N.Y.S.2d 554 [2008]; Matter of Gonzalez v. Selsky, 20 A.D.3d 833, 798 N.Y.S.2d 704 [2006] ). Inasmuch as the record does not reflect that petitioner was refunded the mandatory $5 surcharge ( see7 NYCRR 253.7[b] ), he should be permitted to recoup that expense ( see Matter of Mastropietro v. Fischer, 81 A.D.3d 1022, 1022, 916 N.Y.S.2d 848 [2011] ).
ADJUDGED that the petition is dismissed, as moot, without costs, but with a refund of the mandatory surcharge in the amount of $5.