Jenkins v. Dennison

Apr 12, 2007
Versions:39 A.D.3d 1010
831 N.Y.S.2d 922

Appeal from a judgment of the Supreme Court (Lamont, J.), entered October 12, 2006 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent‘s motion to dismiss the petition.

In May 2006, petitioner commenced this CPLR article 78 proceeding challenging a September 21, 2005 decision of the Board of Parole denying his request for parole release. Subsequently, a de novo parole hearing was conducted in August 2006, which again resulted in the denial of petitioner‘s request for parole release. As a result, Supreme Court granted respondent‘s motion to dismiss the petition which challenges only the 2005 denial decision. This appeal ensued.

Petitioner‘s challenge to the Board‘s September 21, 2005 decision is rendered moot by the August 2006 de novo parole hearing, which is not before us (see Matter of Rivera v New York State Div. of Parole, 23 AD3d 863, 864 [2005], lv denied 6 NY3d 709 [2006]; see also Matter of Gaito v New York State Bd. of Parole, 238 AD2d 634, 634 [1997]). Given that the exception to the mootness doctrine is not applicable to the circumstances at hand (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]), Supreme Court properly dismissed the petition.

Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.