Matter of Pereira v Fischer

Sep 15, 2011
511486
Versions:2011 NY Slip Op 06441
87 AD3d 1192

In the Matter of George Pereira, Petitioner,
v
Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] 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 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 AD3d 1009, 1010 [2008]; Matter of Beyah v LeFevre, 142 AD2d 829 [1988]; Matter of Gonzalez v Jones, 115 AD2d 849, 850-851 [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 AD3d 975 [2011]; Matter of Murphy v Boucaud, 78 AD3d 1417 [2010]).

Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.