Sawyer v. Travis

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered March 17, 2004 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition for failure to exhaust administrative remedies. On July 9, 2003, petitioner appeared before the Board of Parole and his request for parole release was denied. Supreme Court granted respondent’s motion to dismiss the proceeding for failure to exhaust administrative remedies. Petitioner appeals. The Attorney General has advised this Court that petitioner has been granted conditional release and was released to parole supervision on November 5, 2004, rendering any challenge to the denial of his parole request moot (see Matter of Eastman v New York State Bd. of Parole, 247 AD2d 740 [1998]). In any event, were we to reach the merits we would find that Supreme Court properly dismissed the proceeding inasmuch as petitioner commenced this CPLR article 78 proceeding prior to perfecting his administrative appeal (see Matter of Boddie v New York State Div. of Parole, 293 AD2d 884 [2002], appeal dismissed 98 NY2d 752 [2002]; Matter of Lee v New York State Dept, of Parole, 252 AD2d 703 [1998], Iv denied 92 NY2d 815 [1998]). Cardona, RJ., Crew III, Carpinello, Mugglin and Kane, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.