Decided and Entered: February 24, 2005 95760 ________________________________ In the Matter of THOMAS DALLIO, Appellant, v ANTHONY ANNUCCI, as Deputy Commissioner and Counsel at Upstate Correctional Facility, Respondent. ________________________________ Calendar Date: February 2, 2005 Before: Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ. __________ Thomas Dallio, Malone, appellant pro se. Eliot Spitzer, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent. __________ Appeal from a judgment of the Supreme Court (Feldstein, J.), entered March 18, 2004 in Franklin County, which, inter alia, dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s request to view videotapes. After obtaining certain facility security videotapes from respondent which he had requested pursuant to the Freedom of Information Law (see Public Officers Law art 6) (hereinafter FOIL), petitioner submitted a second FOIL request to view the videotapes. Respondent initially denied the request, explaining that the question of whether an inmate may be permitted access to the equipment and opportunity to view the videotapes is not dictated by FOIL but, rather, is an administrative determination involving security and other considerations. Petitioner commenced this proceeding challenging respondent’s determination and, on March 17, 2004, Supreme Court dismissed the petition. Petitioner appeals, and respondent now takes the position that the appeal is moot because petitioner was permitted to view the videotapes on October 8, 2004. In his reply brief, however, petitioner asserts that the issue is not moot because he was not permitted to view the videotapes in their entirety. Thus, the parties’ submissions on appeal have raised a factual question with respect to whether petitioner has been afforded all of the relief sought in his petition. Accordingly, we deem it appropriate to withhold decision and remit to Supreme Court for a determination of that issue (see Matter of Llana v Town of Pittstown, 234 AD2d 881, 884 [1996]). Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. ORDERED that the decision is withheld, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision.
