IN RE: David A. BURR

Reset A A Font size: Print

Supreme Court, Appellate Division, Third Department, New York.


Decided: September 20, 2012

Before:  MERCURE, J.P., ROSE, MALONE JR., McCARTHY and GARRY, JJ. David A. Burr, Auburn, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered February 2, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding challenging a November 2009 determination of the Board of Parole that denied his request for discretionary parole release and ordered him held for an additional 24 months.   While this proceeding was pending, petitioner reappeared before the Board in November 2011 and his request for parole was again denied.   As a result, respondent moved to dismiss the petition as moot.   Supreme Court granted the motion and this appeal ensued.

Contrary to petitioner's argument, his intervening reappearance before the Board following the commencement of the subject CPLR article 78 proceeding renders his appeal moot (see Matter of Kalwasinski v. New York State Div. of Parole, 36 A.D.3d 1200, 828 N.Y.S.2d 668 [2007], lv. denied 8 N.Y.3d 811, 836 N.Y.S.2d 550, 868 N.E.2d 233 [2007];  Matter of Almonte v. New York State Div. of Parole, 2 A.D.3d 1239, 1240, 768 N.Y.S.2d 861 [2003], appeal dismissed 2 N.Y.3d 758, 778 N.Y.S.2d 775, 811 N.E.2d 37 [2004] ).   Moreover, Supreme Court correctly held that the exception to the mootness doctrine is inapplicable to petitioner's circumstances (see Matter of Marcelin v. Evans, 86 A.D.3d 880, 881, 927 N.Y.S.2d 613 [2011] ).

ORDERED that the judgment is affirmed, without costs.

Copied to clipboard