IN RE: RICHARD S. (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the judgment insofar as it granted the petition and annulled the determination is dismissed, and the judgment is unanimously modified on the law by vacating the second and third decretal paragraphs, and as modified the judgment is affirmed without costs.

Memorandum:  Petitioner, who is currently confined at the Central New York Psychiatric Center (CNYPC), commenced this CPLR article 78 proceeding seeking to annul a determination prohibiting him from possessing or using a miswak, which is a root traditionally used by practicing Muslims for oral hygiene.  Respondents now appeal from a judgment that, inter alia, granted the petition and annulled the determination.

Initially, petitioner contends that this appeal has been rendered moot because, under a new policy adopted by CNYPC subsequent to the entry of the judgment on appeal, he is permitted to possess and use a miswak.  Insofar as the appeal concerns the first decretal paragraph of the judgment, in which Supreme Court granted the petition and annulled the determination, we agree, and we therefore dismiss the appeal to that extent.  In light of CNYPC's new policy regarding miswak sticks, “enduring consequences” no longer flow from that decretal paragraph (Matter of New York State Commn. on Jud. Conduct v. Rubenstein, 23 N.Y.3d 570, 576, 992 N.Y.S.2d 678, 16 N.E.3d 1156 [2014];  cf. Frederick v. New York State Thruway Auth., 143 A.D.3d 1267, 1268, 39 N.Y.S.3d 344 [4th Dept. 2016]).

However, the appeal is not moot insofar as it concerns the second and third decretal paragraphs of the judgment, in which the court stated that petitioner is entitled to order, possess, and use “licorice chew sticks,” and in which the court directed that any chew sticks confiscated from petitioner be returned to him (see generally Frederick, 143 A.D.3d at 1268, 39 N.Y.S.3d 344).  Although the court in the second decretal paragraph equated licorice chew sticks with miswak sticks, CNYPC's policy regarding miswak sticks does not allow petitioner to possess or use licorice.  In addition, although petitioner alleged that CNYPC staff prohibited him from receiving miswak sticks that he had ordered, petitioner had in fact ordered licorice sticks, which CNYPC staff confiscated.

Furthermore, we agree with respondents that the court erred in granting petitioner relief with respect to the possession and use of licorice.  Petitioner did not seek such relief in the petition (see Matter of Hawkins v. New York State Dept. of Corr. & Community Supervision, 140 A.D.3d 34, 40, 30 N.Y.S.3d 397 [3d Dept. 2016];  Matter of Krieger v. Krieger, 65 A.D.3d 1350, 1352, 886 N.Y.S.2d 463 [2d Dept. 2009]) and, although the court has the authority to grant relief on “terms as may be just” (CPLR 3017[a]), we conclude that the relief granted in the second and third decretal paragraphs of the judgment “was not appropriate given the evidence presented here” (Tarsel v. Trombino, 167 A.D.3d 1462, 1464, 91 N.Y.S.3d 635 [4th Dept. 2018];  see Hawkins, 140 A.D.3d at 40, 30 N.Y.S.3d 397).  Therefore, we modify the judgment by vacating those decretal paragraphs.