In the Matter of Vincent J. Francis, Appellant, v. Melvin Hollins, as Superintendent of Oneida Correctional Facility, Respondent

In the Matter of Vincent J. Francis, Appellant, v Melvin Hollins, as Superintendent of Oneida Correctional Facility, Respondent. [679 NYS2d 865] [MAJORITY] —Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that he violated an inmate disciplinary rule, to compel respondent to provide a treatment program for sex offenders at the correctional facility and to compel respondent to stop all retaliation against petitioner, including examining and confiscating petitioner’s mail. After petitioner commenced this proceeding, respondent issued an administrative order reversing the determination of guilt and directing that all references to the disciplinary proceeding be expunged. Supreme Court nonetheless addressed the merits of the petition concerning that issue and confirmed the determination. The court should have dismissed that part of the petition as moot inasmuch as petitioner obtained administratively the relief he sought with respect to the alleged violation of a disciplinary rule (see, Matter of Free v Coombe, 234 AD2d 996), and we modify the judgment accordingly. The court properly concluded that petitioner failed to exhaust his administrative remedies with respect to the remaining issues raised in the petition because petitioner had not availed himself of the inmate grievance procedure before commencing this proceeding (see, 7 NYCRR part 701; see also, Matter of Roberts v Coughlin, 165 AD2d 964, 965). We have reviewed petitioner’s remaining contentions and conclude that they lack merit. (Appeal from Judgment of Supreme Court, Oneida County, Tenney, J. — CPLR art 78.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.