People ex rel. Stephenson v. New York City Department of Correction

*348Order, Supreme Court, Bronx County (Denis J. Boyle, J.), entered April 15, 2004, dismissing the petition for a writ of habeas corpus, unanimously reversed, on the law, without costs, the dismissal vacated, the petition deemed to be one filed pursuant to CPLR article 78 and reinstated as such, and the matter remanded for further proceedings.

As respondents concede, since petitioner could not be released from custody even if the challenged administrative determination were overturned, the proceeding should have been converted to an article 78 proceeding (see People ex rel. Dawson v Smith, 69 NY2d 689, 690 [1986]). We, accordingly, deem the matter to have been brought pursuant to CPLR article 78 and remand for respondents’ submission of the administrative record and resolution of any issues appropriately addressed prior to this Court’s consideration of whether there is substantial evidence to support the challenged determination. Concur— Buckley, P.J., Friedman, Marlow, Sullivan and Malone, JJ.