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

945
TP 15-00425
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF JERMAINE FANN, PETITIONER,

                      V                           MEMORANDUM AND ORDER

L.T. BRIGHT AND SUPERINTENDENT DOLCE,
RESPONDENTS.


JERMAINE FANN, PETITIONER PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PETER H. SCHIFF OF
COUNSEL), FOR RESPONDENTS.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Orleans County [James P.
Punch, A.J.], entered March 10, 2015) to review a determination of
respondents. The determination found after a tier II hearing that
petitioner had violated various inmate rules.

     It is hereby ORDERED that the order transferring this proceeding
is unanimously vacated without costs.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination, following a tier II disciplinary
hearing, that he violated certain inmate rules. Supreme Court denied
the petition, and petitioner filed a notice of appeal from the
judgment. Rather than perfecting his appeal from the judgment,
however, petitioner moved to transfer the proceeding to this Court
pursuant to CPLR 7804 (g), and the court granted the motion. That was
error, inasmuch as the proceeding terminated in the judgment, and thus
there was no proceeding pending in Supreme Court that could be
transferred pursuant to CPLR 7804 (g). Instead, petitioner’s remedy
was to perfect his appeal. We therefore vacate as void the order
transferring the proceeding to this Court (see generally Matter of
Drumm v Shah, 107 AD3d 1476, 1476).




Entered:    October 9, 2015                     Frances E. Cafarell
                                                Clerk of the Court
