IN RE: James E. CLIFF (2000)

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December 16, 1998 in Clinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondents denying petitioner's grievance.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging the denial of a grievance he filed claiming that a correction officer abused his authority in authoring a misbehavior report charging petitioner with providing unauthorized legal assistance in violation of prison rule 180.17.   The grievance was denied on the basis that, inter alia, petitioner was found guilty of the charge alleged in the misbehavior report and this denial was upheld on petitioner's administrative appeal.   Supreme Court, in dismissing the petition, also relied, in great part, on the determination of guilt.

However, as noted by the Attorney-General, this court recently annulled the determination finding petitioner guilty of rendering unauthorized legal assistance and directed the matter to be expunged from his institutional record (see, Matter of Cliff v. Tedford, 262 A.D.2d 724, 694 N.Y.S.2d 182).   Given Supreme Court's reliance on this determination, the Attorney-General urges this court to remit the matter to Supreme Court.   Upon review of the record and the opposing arguments of the parties, we deem it appropriate to grant the Attorney-General's request and remit the matter for Supreme Court's further consideration (see generally, Matter of Reynoso v. Kuhlmann, 235 A.D.2d 873, 652 N.Y.S.2d 1018).

ORDERED that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this court's decision.

MEMORANDUM DECISION.