Diaz v. Ledbetter

— Garry, J. Appeal from a judgment of the Supreme Court (Melkonian, J.), entered October 18, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition. In September 2011, petitioner applied to participate in a [1044] temporary prison work release program and his application was denied based upon the serious nature of his crime, as well as his prior convictions and sanctions imposed while incarcerated. Petitioner filed a timely administrative appeal but, prior to receiving a response to that appeal, he commenced this CPLR article 78 proceeding seeking to challenge the denial. Following the service of respondent’s answer, Supreme Court dismissed the proceeding for petitioner’s failure to exhaust his administrative remedies, after which petitioner sought to appeal to this Court. However, this Court has been advised that, as of September 28, 2013, petitioner has been released on parole. Because petitioner is no longer incarcerated and, accordingly, is no longer affected by the determination that denied his temporary work release application, this appeal must be dismissed as moot (see Matter of Gallo v New York State Temporary Release Program, 100 AD3d 1165, 1166 [2012]; Matter of Shell v New York State Dept. of Corrections Temporary Release Program, 26 AD3d 537, 537 [2006]). Rose, J.P, Lahtinen and Stein, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.