
    [868 NE2d 226, 836 NYS2d 544]
    In the Matter of Rodney Elliott, Appellant, v Sheryl Butler, as Deputy Superintendent of Programs, Eastern Correctional Facility, et al., Respondents.
    Decided May 8, 2007
    APPEARANCES OF COUNSEL
    
      Rodney Elliott, appellant pro se.
    
      Andrew Cuomo, Attorney General, Albany (Kate H. Nepveu, Barbara D. Underwood and Daniel Smirlock of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, without costs, and matter remitted to Supreme Court, Albany County, for a traverse hearing. The parties’ submissions on the motion to dismiss raise issues of fact requiring a traverse hearing.

Concur: Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.  