Cliff v. Russell

Spain, J. Appeal from a judgment of the Supreme Court (Berke, J.), entered December 14, 1998 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition. [821] Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging the denial of a grievance he filed in which he claimed that a correction officer authored a misbehavior report charging petitioner with harassment and refusing a direct order in retaliation for petitioner’s actions in filing prior complaints against this correction officer. The petition was dismissed by Supreme Court in response to respondents’ CPLR 3211 motion. Significantly, one of the grounds cited by Supreme Court in dismissing the petition was that petitioner’s argument relating to the retaliatory nature of the misbehavior report was currently pending in a separate CPLR article 78 proceeding; petitioner had instituted that pending proceeding to challenge the determination of guilt rendered as a result of that misbehavior report (see, CPLR 3211 [a] [4]). However, as noted by the Attorney General, the determination of guilt on the misbehavior report was thereafter administratively reversed and this Court dismissed petitioner’s appeal therefrom as moot (see, Matter of Cliff v Russell, 260 AD2d 879). Consequently, the Attorney General has submitted a letter to this Court advising that this change of circumstances has rendered it impossible to defend the dismissal of this proceeding on the basis of CPLR 3211 (a) (4). Upon review of the record and the opposing arguments, we deem it appropriate to grant the Attorney General’s request to reinstate the petition and remit the matter to Supreme Court to afford respondents the opportunity to answer the petition on the merits. Cardona, P. J., Carpinello, Graffeo and Mugglin, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court where respondents will be permitted to serve an answer within 20 days of the date of this Court’s decision.