MatterofOppenheimervGriffin ( 2014 )

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: December 4, 2014 518843 ________________________________ In the Matter of ANTONIO OPPENHEIMER, Petitioner, v MEMORANDUM AND JUDGMENT T. GRIFFIN, as Superintendent of Eastern Correctional Facility, et al., Respondents. ________________________________ Calendar Date: October 21, 2014 Before: Peters, P.J., Stein, Garry, Lynch and Clark, JJ. __________ Antonio Oppenheimer, Napanoch, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs 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 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 AD3d 1122, 1122-1123 [2008]; Matter of Gonzalez v Selsky, 20 AD3d 833 [2006]). Inasmuch as the record does not -2- 518843 reflect that petitioner was refunded the mandatory $5 surcharge (see 7 NYCRR 253.7 [b]), he should be permitted to recoup that expense (see Matter of Mastropietro v Fischer, 81 AD3d 1022, 1022 [2011]). Peters, P.J., Stein, Garry, Lynch and Clark, JJ., concur. ADJUDGED that the petition is dismissed, as moot, without costs, but with a refund of the mandatory surcharge in the amount of $5. ENTER: Robert D. Mayberger Clerk of the Court