IN RE: Thomas W. RYHAL (2022)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Richard Rivera, J.), entered December 30, 2020 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner, an incarcerated individual, commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of violating certain prison disciplinary rules, as well as two decisions of the Board of Parole denying his release to parole supervision.  Respondents filed a pre-answer motion to dismiss petitioner's claims as to the Board's decisions on the basis that one decision had been rendered moot and petitioner had failed to exhaust administrative remedies as to the other.  Supreme Court dismissed the petition in its entirety, agreeing with respondents as to the decisions denying petitioner's release to parole supervision and further finding that his challenge to the disciplinary determination was barred by the applicable statute of limitations (see CPLR 217[1]).  Petitioner appeals.

Initially, we note that public records indicate that in March 2022, during the pendency of this appeal, petitioner was conditionally released to parole supervision.  Accordingly, petitioner's challenge to the Board's prior decisions denying his release have been rendered moot (see Matter of Blake v. Dennison, 57 A.D.3d 1137, 1138, 868 N.Y.S.2d 827 [3d Dept. 2008], lv denied 12 N.Y.3d 710, 2009 WL 1298942 [2009];  Matter of Velasquez v. Dennison, 34 A.D.3d 898, 898, 822 N.Y.S.2d 740 [3d Dept. 2006]).  However, petitioner's challenge to the disciplinary determination has not been rendered moot by his conditional release (see Matter of Quiroz v. Venettozzi, 161 A.D.3d 1475, 1475, 78 N.Y.S.3d 443 [3d Dept. 2018];  Matter of Brown v. Fischer, 120 A.D.3d 1517, 1518, 992 N.Y.S.2d 463 [3d Dept. 2014];  Matter of Walker v. Senkowski, 260 A.D.2d 830, 831, 688 N.Y.S.2d 770 [3d Dept. 1999]).  Accordingly, and as respondents concede that the claim was not time-barred based upon the application of the tolling provisions of certain executive orders that were issued by the Governor in response to the COVID–19 pandemic (see e.g. Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8];  Executive Order [A. Cuomo] No. 202.67 [9 NYCRR 8.202.67]), we remit the matter to Supreme Court for respondents to file an answer pursuant to CPLR 7804(f) (see generally Matter of Grant v. Capra, 181 A.D.3d 1046, 1047, 117 N.Y.S.3d 632 [3d Dept. 2020];  Matter of Mitchell v. Annucci, 173 A.D.3d 1579, 1579, 101 N.Y.S.3d 659 [3d Dept. 2019]).

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as dismissed petitioner's challenge to the prison disciplinary determination;  matter remitted to the Supreme Court to permit respondent Acting Commissioner of Corrections and Community Supervision to serve an answer within 20 days of the date of this Court's decision;  and, as so modified, affirmed.

Pritzker, J.

Egan Jr., J.P., Clark, Reynolds Fitzgerald and McShan, JJ., concur.