        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1459
CA 13-01693
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF PETER SYLVESTER,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT-RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF
COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered August 15, 2013 in a proceeding pursuant to
CPLR article 78. The judgment dismissed the petition.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination that denied his inmate grievance
while he was incarcerated at Attica Correctional Facility (Attica).
Petitioner correctly concedes that two of the claims in his grievance
are moot inasmuch as he has since been transferred to another
correctional facility, and we agree with respondent that the third
claim likewise presents no justiciable controversy. Petitioner’s
third claim was that Attica was improperly applying decisions rendered
by the Central Office Review Committee (CORC) to inmates at Attica.
According to petitioner’s inmate grievance form, “CORC decisions that
did not originate at grievant’s current facility should not be applied
to this facility.” As an example, petitioner cited a CORC decision
that prohibits inmates from possessing a particular brand of radios.
Because “the rights of the parties cannot be affected by the
determination of this appeal,” it must be dismissed as moot (Matter of
Hearst Corp. v Clyne, 50 NY2d 707, 714). Even assuming, arguendo,
that the exception to the mootness doctrine applies with respect to
petitioner’s third claim (see generally id. at 714-715), we conclude
that petitioner failed to demonstrate that respondent’s denial of that
claim was “arbitrary or capricious or without a rational basis”
(Matter of Patel v Fischer, 67 AD3d 1193, 1193, lv denied 14 NY3d
                             -2-                 1459
                                            CA 13-01693

703).




Entered:   January 2, 2015         Frances E. Cafarell
                                   Clerk of the Court
