
    In the Matter of Joseph Griffin, Appellant, v David R. Harris, as Superintendent of the Green Haven Correctional Facility, et al., Respondents.
   In a proceeding pursuant to CPLR article 78, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Isseks, J.), dated August 4, 1980, which denied the petition and remanded him to the custody of respondents. Judgment reversed, on the law and the facts, without costs or disbursements, and petition granted to the extent that it is directed that all records of the Green Haven Correctional Facility pertaining to petitioner’s confinement to a “Special Housing Unit” on May 2,1980 be vacated. On the record, we find that petitioner, after declining to sign a consent to protective custody on May 2, 1980, was not afforded a hearing in a superintendent’s proceeding under 7 NYCRR 304.3 (c), (d) to determine whether there was substantial evidence to show that protective custody was necessary. The respondents have failed to offer any valid explanation or justification for such omission. There is no merit to their assertion that the issue was mooted when the petitioner was removed from such “Special Housing Unit” and thereafter transferred to another correctional facility. Nor is there any substance to the claim that the failure of the respondents to proceed with such superintendent’s proceeding was due to respondents’ impending termination of employment at the facility at the time such proceeding was contemplated. Damiani, J. P., Titone, Mangano and Gibbons, JJ., concur.  