
    In the Matter of Ricardo A. Di Rose, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    [633 NYS2d 808]
   —Appeal from a judgment of the Supreme Court (Canfield, J.), entered August 11,1994 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s grievance.

Petitioner, a prison inmate, commenced the instant CPLR article 78 proceeding seeking the return of certain property that had been confiscated from his cell. Supreme Court dismissed the petition upon the ground of res judicata. In view of the fact that petitioner commenced a previous CPLR article 78 proceeding seeking the same relief, which we found was properly dismissed for untimeliness (see, Matter of Di Rose v New York State Dept, of Corrections, Inspector General’s Off., 221 AD2d 736 [decided herewith]), we concur with Supreme Court’s ruling that this proceeding is barred by res judicata. We do, however, agree with petitioner that the award of motion costs to respondent was inappropriate under the circumstances.

Cardona, P. J., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is modified, on the facts, without costs, by deleting so much thereof as imposed $20 in motion costs upon petitioner, and, as so modified, affirmed.  