                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 16, 2016                     521881
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In the Matter of CARLOS
   RODRIGUEZ,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
STATE OF NEW YORK DEPARTMENT
   OF CORRECTIONS AND
   COMMUNITY SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   May 3, 2016

Before:   Lahtinen, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

                               __________


     Carlos Rodriguez, Wallkill, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.

                               __________


      Appeal from a judgment of the Supreme Court (Koweek, J.),
entered October 2, 2015 in Columbia County, which, in a
proceeding pursuant to CPLR article 78, granted respondent's
motion to dismiss the petition.

      Petitioner commenced this CPLR article 78 proceeding
seeking to expunge allegedly inaccurate mental health information
contained in his security classification records. In lieu of an
answer, respondent moved to dismiss the petition as moot on the
ground that the objectionable information has since been deleted.
Supreme Court granted the motion and this appeal ensued.

      Respondent concedes, and we agree, that, to the extent that
petitioner's security classification records reflect petitioner's
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prior designation as an Office of Mental Health service level 1,
the matter is not moot. Given that respondent has not had the
opportunity to submit an answer on the merits of the petition,
the matter must be remitted to Supreme Court for further
proceedings (see e.g. Matter of Kairis v Smith, 129 AD3d 1426,
1426 [2015]; Matter of Hammond v LaValley, 117 AD3d 1266, 1267
[2014]).

      Lahtinen, J.P., Egan Jr., Rose, Clark and Mulvey, 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.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
