dissents and votes to annul in the following memorandum. Kane, J. (dissenting). I am unable to agree with the majority that this proceeding should be dismissed as moot. Rather, constrained by our holding in Matter of Rahman v Coughlin (112 AD2d 591), I am of the opinion that we must decide this proceeding upon the merits.
In Matter of Rahman v Coughlin (supra), without any mention of the doctrine of finality of administrative determinations, we stated that once a CPLR article 78 proceeding, seeking review of a prison disciplinary matter, has been commenced: "jurisdiction of the matter reposed in the courts, and respondents, in the absence of express statutory authority permitting them to do so * * * were not at liberty, unilaterally and without court sanction, to reconvene the matter administratively” (pp 591-592 [citation omitted]). In light of this unequivocal statement, I am unable to agree with the majority that Rahman does not apply to this case.
Turning to the merits, since respondents concede that there is no basis upon which to defend the original determination, the petition should be granted. Although this results in duplication of effort, such is the effect of our decision in Matter of Rahman v Coughlin (supra).