Viscusi v. Ostrowski

Jul 24, 2008
Versions:53 A.D.3d 965
860 N.Y.S.2d 756

Appeal from a judgment of the Supreme Court (Lynch, J.), entered November 8, 2007 in Albany County, which granted petitioner‘s application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Board of Parole denying petitioner‘s request for parole release.

Petitioner commenced this CPLR article 78 proceeding seeking to annul a May 2006 determination of the Board of Parole denying his request for parole release and imposing a 24-month hold. Supreme Court granted the petition based upon the Board‘s failure to obtain and consider petitioner‘s sentencing minutes and remitted this matter for a new hearing.

In view of the fact that Supreme Court granted petitioner‘s application and remitted this matter for a new hearing, which petitioner received, petitioner was not an aggrieved party within the meaning of CPLR 5511 (see Matter of Habib v Motor Veh. Acc. Indem. Corp., 30 AD3d 422, 423 [2006]; Matter of Alvarez v State Bd. of Parole, 74 AD2d 684 [1980]).

Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur.

Ordered that the appeal is dismissed, as moot, without costs.