Civil Procedure · MBE-tested
The People of the State of New York ex rel. Larry McNair, Appellant, v. Michael Allard, as Acting Superintendent of Gowanda Correctional Facility, et al., Respondents
305 A.D.2d 1099759 N.Y.S.2d 721·New York Supreme Court, Appellate Division·2003·NY
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Opinion
The People of the State of New York ex rel. Larry McNair, Appellant, v Michael Allard, as Acting Superintendent of Gowanda Correctional Facility, et al., Respondents.
[759 NYS2d 721]
[MAJORITY]
—Appeal from a judgment (denominated order) of Supreme Court, Erie County (Fahey, J.), entered January 24, 2002, which dismissed the petition.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Petitioner filed a petition seeking a writ of habeas corpus, alleging, inter alia, that the New York State Department of Correctional Services erred in computing his release date. Supreme Court properly converted the proceeding to one pursuant to CPLR article 78 and properly dismissed the petition as lacking in merit. Petitioner contends that he is entitled to a hearing with respect to his correct conditional release date. Petitioner, however, has failed to demonstrate the existence of a factual issue that would warrant a hearing (cf. Matter of Birden v Department of Correctional Servs., 134 AD2d 843, 843-844 [1987]). Present — Green, J.P., Hurlbutt, Scudder, Burns and Hayes, JJ.