Calendar Date: April 23, 2018Before: McCarthy, J.P., Egan Jr., Aarons, Rumsey andPritzker, JJ.__________Barbara D. Underwood, Attorney General, Albany (Frank Bradyof counsel), for appellants.__________Egan Jr., J.Appeal from an judgment of Supreme Court (Schick, J.),entered April 20, 2017 in Sullivan County, which, among otherthings, in a proceeding pursuant to CPLR article 78, remanded thematter to the Board of Parole for a de novo hearing.Following the Board of Parole’s denial of his request forparole release in November 2015, and an unsuccessfuladministrative appeal therefrom, petitioner commenced this CPLRarticle 78 proceeding challenging the Board’s determination. InOctober 2016, following joinder of issue, Supreme Court annulledthe Board’s determination, finding that it had failed to considerthe relevant statutory factors, and remitted the matter to theBoard to conduct de novo hearing with new Board members (seeExecutive Law § 259-i). The Board held a new hearing and issueda determination again denying petitioner parole release, andpetitioner filed an administrative notice of appeal therefrom.Petitioner also moved, by order to show cause, for an orderfinding, among other things, respondents to be in contempt forviolating Supreme Court’s October 2016 order and directingremittal for yet another de novo hearing. Finding that the Boardhad still failed to properly conduct petitioner’s parole hearing,Supreme Court held that petitioner was entitled to a thirdhearing, but otherwise denied petitioner’s motion for contempt.Respondents appeal.Initially, there is no dispute that respondents’ appealshould be dismissed as moot because the Board has since grantedpetitioner parole release (see Matter of Cummings v Regan, 36NY2d 969, 969 [1975]; Matter of Franco v New York State Bd. ofParole, 157 AD3d 1150, 1151 [2018]; Matter of Sanchez v Stanford,152 AD3d 854, 854-855 [2017]) and the exception to the mootnessdoctrine does not apply (see Matter of Hearst Corp. v Clyne, 50NY2d 707, 714-715 [1980]). Respondents urge, however, that weshould exercise our discretion to vacate the underlying order toavoid confusion of law.Although “there is no question that it is the generalpolicy of the courts of this [s]tate to simply dismiss an appealthat has been rendered moot, occasionally, however, courts havealso vacated the order [or judgment] appealed as a matter ofdiscretion in order to prevent [it] from engendering adverselegal consequences or precedent” (Matter of Lichtel v Travis, 287AD2d 837, 838 [2001] [internal quotation marks, ellipses,brackets and citations omitted]; see E-Z Eating 41 Corp. v H.E.Newport L.L.C., 84 AD3d 401, 401 [2011]; Matter of Marinaccio vBoardman, 303 AD2d 896, 897 [2003]; Matter of Finkelstein v NewYork State Bd. of Law Examiners, 241 AD2d 728, 729 [1997];compare Matter of Sarbro IX v McGowan, 271 AD2d 829, 830 [2000]).That said, under the circumstances presented here, we are notinclined to deviate from our general practice of dismissing theappeal in cases that have been rendered moot.McCarthy, J.P., Aarons, Rumsey and Pritzker, JJ., concur.ORDERED that the appeal is dismissed, as moot, withoutcosts.ENTER:Robert D. MaybergerClerk of the Court
