Carr v. Board of Education of the Greenburgh Central School District No. 7

—In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of a hearing panel convened pursuant to Education Law § 3020-a, which found the petitioner guilty of several charges of incompetence and insubordination, he appeals from a judgment of the Supreme Court, Westchester County (Walsh, J.), entered [896] March 12, 1985, which granted so much of respondents’ cross motion which was to dismiss the proceeding. Appeal dismissed as moot, with costs. Special Term granted so much of respondents’ cross motion as sought dismissal of the instant proceeding based upon the doctrine of primary jurisdiction, as prior to the commencement of this proceeding, respondents had appealed to the Commissioner of the Board of Education from the same determination which is under review in the instant article 78 proceeding. Both types of review of hearing panel determinations are permitted under Education Law § 3020-a (5). Before petitioner’s appeal from the judgment of Special Term was heard by this court, the Commissioner of Education issued a decision which annulled the hearing panel’s determination, made his own findings, and imposed a more severe penalty. The Commissioner’s decision, which supplants the decision of the hearing panel upon which the instant proceeding is based, renders the propriety of Special Term’s dismissal a moot issue (see, e.g, Governale v Porsche-Audi of Bay Ridge, 97 AD2d 457). As no controversy remains with respect to the judgment from which the appeal is taken, the appeal is dismissed as moot (see, Nassau Trust Co. v Filderman, 52 AD2d 588; City of Binghamton v Monserrate, 71 AD2d 745, lv denied 48 NY2d 611). Were we to have decided the appeal on its merits, the judgment would have been affirmed. Mangano, J. P., Bracken, Weinstein, Lawrence and Hooper, JJ., concur.