Alstranner v. Selsky

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was a prison inmate participating in a work release program when his urine tested positive for the presence of cocaine. A prison disciplinary hearing resulted in a decision finding petitioner guilty of using a controlled substance and of violating the rules of the work release program. Petitioner thereafter commenced this CPLR article 78 proceeding contending, inter alia, that a prescription medication he was taking at the time of the urinalysis resulted in a false positive test result and demanding reinstatement in the work release program. Before the proceeding had been adjudicated, however, petitioner was approved for reentry into the work release program. Because petitioner has already received the relief to which he would have been entitled if the proceeding had been successful, i.e., a second opportunity to participate in the work release program, this proceeding must be dismissed as moot (see, Matter of Roper v Recore, 222 AD2d 911; Matter of Prescott v Coughlin, 221 AD2d 785). If we were to review the merits of petitioner’s contentions, however, we would rule that because he failed to object to the alleged procedural errors at [659] the disciplinary hearing, he has waived his right to raise them in the context of this proceeding (see, Matter of Dotson v Coughlin, 191 AD2d 912, 914, Lv denied 82 NY2d 651). Cardona, P. J., Mercure, Peters, Spain and Carpinello, JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.