Howard v. Miller

• Citation: 193 A.D.2d 988,598 N.Y.S.2d 369
• Parties: In the Matter of Henry E. HOWARD, Petitioner, v. David L. MILLER, as Superintendent of Wallkill Correctional Facility, et al., Respondents.
• Decision Date: 20 May 1993
• Court: New York Supreme Court Appellate Division

Page 369

598 N.Y.S.2d 369

193 A.D.2d 988

In the Matter of Henry E. HOWARD, Petitioner, v. David L. MILLER, as Superintendent of Wallkill Correctional

Facility, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

May 20, 1993.

Henry E. Howard, Comstock, petitioner in pro. per.

Before YESAWICH, J.P., and LEVINE, MERCURE, MAHONEY and HARVEY, JJ.

MEMORANDUM DECISION.

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

After the commencement of this CPLR article 78 proceeding, the determination finding petitioner guilty of fighting was reversed on administrative appeal and all references to the hearing were expunged from petitioner's institutional records. Consequently, by letter dated January 6, 1992, respondents requested that the petition be dismissed as moot. Petitioner opposed respondents' motion to dismiss contending that part of the relief he requested was to be returned to the medium security status that he enjoyed at Wallkill Correctional Facility in Ulster County prior to this incident. We have previously noted that respondent Commissioner of Correctional Services has the authority to transfer inmates from one correctional facility to another and inmates have no constitutional or statutory right to their prior housing status (see, Matter of Fridella v. Coughlin, 177 A.D.2d 872, 873-874, 577 N.Y.S.2d 151; Matter of Cole v. Smith, 84 A.D.2d 942, 943, 446 N.Y.S.2d 682; Matter of Allegretti v. Coughlin, 81 A.D.2d 958, 439 N.Y.S.2d 691, appeal dismissed 54 N.Y.2d 829, 443 N.Y.S.2d 1033, 427 N.E.2d 1193, lv. denied 55 N.Y.2d 601, 446 N.Y.S.2d 1024, 430 N.E.2d 1320, 55 N.Y.2d 645, 446 N.Y.S.2d 265, 430 N.E.2d 1318). Because petitioner has received all of the relief to which he is entitled, the matter is moot and respondents' motion to dismiss should be granted (see, Matter of Martin v. Henderson, 159 A.D.2d 867, 554 N.Y.S.2d 1020; Matter of Wong v. Coughlin, 150 A.D.2d 832, 540 N.Y.S.2d 384).

ADJUDGED that the petition is dismissed, as moot, without costs.