| Matter of Grant v Capra |
| 2020 NY Slip Op 01547 |
| Decided on March 5, 2020 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: March 5, 2020
529627
v
Michael Capra, as Superintendent of Sing Sing Correctional Facility, Respondent.
Calendar Date: February 7, 2020
Before: Egan Jr., J.P., Mulvey, Devine, Pritzker and Reynolds Fitzgerald, JJ.
Paul Grant, Ossining, appellant pro se.
Letitia James, Attorney General, Albany (Sarah L. Rosenbluth of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Ceresia, J.), entered July 11, 2019 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.
Petitioner, an inmate, commenced this CPLR article 78 proceeding to challenge a determination rendered after a tier II disciplinary hearing. Respondent moved to dismiss the petition based upon petitioner's failure to seek administrative review of the determination. Supreme Court granted the motion and dismissed the petition for failure to exhaust administrative remedies. Petitioner appeals.
During the pendency of the appeal, the Attorney General advised this Court that petitioner did, in fact, file an administrative appeal of the disciplinary determination, but that the documentation regarding the same was misfiled. Accordingly, the Attorney General has withdrawn its objection in point of law, and requests this Court to vacate the judgment dismissing the petition and to remit the matter for further proceedings. In view of this, and based upon our review of the papers submitted, we deem it appropriate to remit the matter for service of an answer and for a determination on the merits (see Matter of Lashley v Goord , 293 AD2d 849, 849 [2002]; Matter of Burr v Goord , 290 AD2d 611, 612 [2002], lv dismissed 97 NY2d 749 [2002]).
Egan Jr., J.P., Mulvey, Devine, Pritzker and Reynolds Fitzgerald, JJ., concur.
ORDERED that the judgment is reversed, on the law, without costs, motion denied, and matter remitted to the Supreme Court to permit respondent to serve an answer within 20 days of the date of this Court's decision.