Ortiz v. Simmons, 67 A.D.3d 1208 (N.Y. App. Div. 2009). · Go Syfert
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Ortiz v. Simmons, 67 A.D.3d 1208 (N.Y. App. Div. 2009). Cases Citing This Book View Copy Cite
9 citation events (9 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Melendez v. Commissioner of the Department of Corrections and Community Supervision (nyappdiv, 2015-04-09)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Melendez v. Commissioner of the Department of Corrections and Community Supervision
N.Y. App. Div. · 2015 · confidence medium
Initially, although petitioner has been removed from IPC and transferred to another correctional facility, his challenge to respondent’s determination is not moot inasmuch as he also *1370 seeks to have it expunged from his institutional record (see Matter of Hynes v Fischer, 101 AD3d 1188, 1189 [2012]; Matter of Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]).
discussed Cited as authority (rule) Matter of Jones v. Fischer
N.Y. App. Div. · 2015 · confidence medium
To that end, our review of the record establishes that the IPC recommendation and the testimony at the hearing, including that of petitioner, provide substantial evidence to support the determination (see Matter of Ortiz v Simmons, 67 AD3d 1208, 1209-1210 [2009]; Matter of Dawes v Fischer, 53 AD3d 902, 903 [2008]).
discussed Cited as authority (rule) Matter of Dawes v. Annucci
N.Y. App. Div. · 2015 · confidence medium
As such, he is no longer aggrieved by those policies and, therefore, any challenge thereto is rendered moot (see Matter of Abreu v White, 85 AD3d 1451, 1451 [2011]; Matter of Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]).
discussed Cited as authority (rule) Hynes v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Initially, it must be noted that although petitioner has since been transferred to another correctional facility and is no longer in IPC, his challenge to the IPC determination is not rendered moot insofar as he seeks expungement of said determination from his institutional record (see Matter of Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]; Matter of Dawes v Fischer, 53 AD3d 902, 903 [2008]).
discussed Cited as authority (rule) Hynes v. Fischer
N.Y. App. Div. · 2012 · confidence medium
Initially, it must be noted that although petitioner has since been transferred to another correctional facility and is no longer in IPC, his challenge to the IPC determination is not rendered moot insofar as he seeks expungement of said determination from his institutional record (see Matter of Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]; Matter of Dawes v Fischer, 53 AD3d 902, 903 [2008]).
discussed Cited as authority (rule) Rossi v. Lape
N.Y. App. Div. · 2010 · confidence medium
Inasmuch as petitioner has been transferred to another correctional facility, his challenge to the determinations denying his grievances and application to hold a fundraiser are moot (see Matter of Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]; Matter of Bermudez v Fischer, 55 AD3d 1099, 1100 [2008], lv denied 11 NY3d 714 [2009], cert denied 558 US —, 130 S Ct 111 [2009]; Matter of McMoore v Greene, 31 AD3d 1007, 1008 [2006], lv denied 7 NY3d 717 [2006]).
discussed Cited as authority (rule) Bailey v. Smith
N.Y. App. Div. · 2010 · confidence medium
Because petitioner has al ready served the penalty imposed, and no loss of good time was recommended, there is no need to remit the matter for a redetermination of the penalty (see Matter of Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]; Matter of Foster v Bezio, 62 AD3d 1222, 1223 [2009]).
discussed Cited as authority (rule) Al-Ibrahim v. Fischer
N.Y. App. Div. · 2010 · confidence medium
Inasmuch as petitioner has already served the penalty and no loss of good time was imposed, however, we need not remit the matter for a redetermination of the penalty (see Matter of Wilson v Kadien, 69 AD3d 1104, 1104 [2010]; Matter of Ortiz v Simmons, 67 AD3d 1208, 1209 [2009]).
Retrieving the full opinion text from the archive…
In the Matter of Eddie Ortiz
v.
L. Simmons, as Lieutenant, Eastern Correctional Facility
Appellate Division of the Supreme Court of the State of New York.
Nov 19, 2009.
67 A.D.3d 1208
Cited by 9 opinions  |  Published

[*1209] Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review (1) a determination of the Superintendent of Eastern Correctional Facility which found petitioner guilty of violating a prison disciplinary rule, (2) a determination of the Commissioner of Correctional Services which directed petitioner be placed in involuntary protective custody, and (3) a determination of the Central Office Review Committee which denied petitioner’s grievance.

Petitioner was charged in a misbehavior report with failing to follow a regulation relating to movement within the facility while incarcerated at Eastern Correctional Facility in Ulster County. Petitioner was found guilty of the charge following a tier II disciplinary hearing. This determination was affirmed on administrative appeal. Petitioner commenced this CPLR article 78 proceeding challenging this determination, as well as a determination placing him in involuntary protective custody and a determination denying a grievance.

Initially, respondents concede and we agree that the charge of failing to follow a facility regulation relating to movement is not supported by substantial evidence in the record and that the administrative determination should be annulled and all references thereto expunged from petitioner’s institutional record (see Matter of Covington v Smith, 63 AD3d 1453, 1454 [2009]). As no loss of good time was imposed, the matter need not be remitted to redetermine the penalty (see id.; Matter of Daum v Goord, 27 AD3d 858, 858-859 [2006]).

The Attorney General has reported to this Court that petitioner has been transferred to another correctional facility. Therefore, his challenge to the determination denying his grievance pertaining to the policy at Eastern requiring his participation in a drug rehabilitation program is rendered moot, as he is no longer aggrieved by the policy (see Matter of Bermudez v Fischer, 55 AD3d 1099, 1100 [2008], lv denied 11 NY3d 714 [2009]; Matter of Lou v Brown, 38 AD3d 1138, 1138-1139 [2007] ).

Although petitioner’s challenge to his initial placement in protective custody is now moot as well, his request for expungement of this determination from his institutional record remains justiciable (see Matter of Dawes v Fischer, 53 AD3d 902, 903 [2008] ). Upon our review, we conclude that the involuntary[*1210] protective custody recommendation, the hearing testimony and the anonymous note received by prison officials threatening petitioner’s life were sufficient to support this determination (see id.). Petitioner’s contention that the letter was fabricated in retaliation for his filing of certain grievances presented a credibility issue for the Hearing Officer to resolve (see Matter of Muller v Fischer, 62 AD3d 1191, 1191 [2009]).

Cardona, EJ., Spain, Rose, Kane and Stein, JJ., concur. Adjudged that the October 16, 2007 determination is annulled, without costs, petition granted to that extent and the Commissioner of Correctional Services is directed to expunge all references thereto from petitioner’s institutional record. Adjudged that the January 3, 2008 determination is confirmed, without costs, and petition dismissed to that extent. Adjudged that the portion of the petition challenging the August 29, 2007 determination is dismissed, as moot, without costs.