IN RE: Mitchell KALWASINSKI

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IN RE: Mitchell KALWASINSKI, Petitioner-Appellant, v. Brian FISCHER, Commissioner, New York State Department of Correctional Services, Respondent-Respondent. (Appeal No. 1.)

Decided: December 30, 2009

PRESENT: HURLBUTT, J.P., PERADOTTO, CARNI, PINE, AND GORSKI, JJ. Mitchell Kalwasinski, Petitioner-Appellant Pro Se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of Counsel), for Respondent-Respondent.

These consolidated appeals arise from two judgments that collectively dismissed a single petition in a proceeding pursuant to CPLR article 78. In appeal No. 1, petitioner appeals from a judgment that dismissed those parts of the petition in which he sought to annul the determinations of the Central Office Review Committee of the Department of Correctional Services concerning 10 separate grievances. Upon our review of the record, we conclude that petitioner failed to demonstrate that the denial of four of those grievances, concerning the purported confiscation of his legal papers (grievance No. A-50949-06), reduction in time to be served in the special housing unit (grievance Nos. A-50903-06, A-51003-06) and the conduct of his correction counselor (grievance No. A-51332-06), were affected by an error of law or were arbitrary and capricious (see Matter of Bryant v. Brunelle, 284 A.D.2d 936, 726 N.Y.S.2d 315; see also Matter of Wilson v. State of N.Y. Dept. of Correctional Servs., 261 A.D.2d 670, 690 N.Y.S.2d 307, appeal dismissed 93 N.Y.2d 1039, 697 N.Y.S.2d 567, 719 N.E.2d 928).

The contentions of petitioner concerning the remaining six grievances are based upon challenges to the conditions of his incarceration at Attica Correctional Facility, but petitioner has since been transferred to another correctional facility. He therefore is no longer aggrieved with respect to the determinations concerning those six grievances, and his appeal from the judgment in appeal No. 1 insofar as it concerned those grievances is moot (see Matter of McKenna v. Goord, 245 A.D.2d 1074, 1075, 666 N.Y.S.2d 80, lv denied 91 N.Y.2d 812, 672 N.Y.S.2d 848, 695 N.E.2d 717; see also Matter of Parrilla v. Donelli, 25 A.D.3d 1046, 807 N.Y.S.2d 488).

In appeal No. 2, petitioner appeals from a judgment dismissing the remaining part of the petition, which challenged the accuracy of respondent's institutional records. Contrary to petitioner's contention, Supreme Court properly dismissed that part of the petition because petitioner failed to exhaust his administrative remedies with respect to the accuracy of those records (see 7 NYCRR 5.52; Matter of Dickens v. Irvin, 214 A.D.2d 1006, 1006-1007, 626 N.Y.S.2d 608).

It is hereby ORDERED that said appeal from the judgment insofar as it concerned grievance Nos. A-50776-06, A-50902-06, A-50921-06, A-50926-06, A-51084-06, and A-51199-06 is unanimously dismissed and the judgment is otherwise affirmed without costs.

MEMORANDUM: