425 Broadhollow Road
Suite 416
Melville, NY 11747

Freiberger Haber LLP
420 Lexington Avenue
Suite 300
New York, NY 10170


Forget Pfizer!!! Obliterate COVID-19 With a Dose of the Mootness Doctrine

Print Article
  • Posted on: Jun 25 2021

“It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal.”  Matter of Darcy M., ___ A.D.3d ___ *1 (2nd Dep’t June 9, 2021) (quoting Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713 (1980)) (internal quotation marks omitted).  Courts cannot issue “advisory opinions”.  Matter of Darcy, at *1.  Accordingly, courts are forbidden “to pass on academic, hypothetical, moot, or otherwise abstract questions….”  Matter of Hearst, 50 N.Y.2d at 713.  This principle “is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary.”  Id., at 713 – 14.  Typically, the doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy.”  Quinn v. 20 East Clinton, LLC, 193 A.D.3d 893, 894 (2nd Dep’t 2021) (citations and internal quotation marks omitted).

In many cases, circumstances change during the course of litigation.  Generally, courts are precluded “from considering questions which, although once live, have become moot by passage of time or change in circumstances.”  Id., at 714.  In this regard, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment.”  Matter of Darcy, at *1.

There are exceptions to the application of the mootness doctrine that permit “a court to pass on moot issues.”  Quinn, 193 A.D.3d at 895.  The exception applies where there is: “(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues.”  Id. (citations and internal quotation marks omitted).

The parties in Quinn were owners of adjacent property.  The defendant’s property contained a 170-year-old residence that was undergoing extensive interior and exterior renovations.  During the renovations, defendant’s contractors frequently entered plaintiff’s property without permission and much debris from the construction found its way to plaintiff’s property.  After informal efforts to resolve defendant’s encroachments failed, plaintiff commenced action and moved for, inter alia, injunctive relief enjoining defendant “and its contractors from performing any further construction work on the subject premises or, in the alternative, … convert[ing] the motion to a proceeding pursuant to RPAPL 881.”  Id. at 894.  [This blog has written about RPAPL 881 [here] and [here], which permits an adjoining property owner or lessee to commence action against a neighbor to obtain a limited license to enter the neighbor’s property to make improvements to owner’s property if voluntary consent is refused.]  By the time that Quinn’s action was commenced, the renovation work was completed and, accordingly, defendant opposed the motion on the ground that it was academic.  Supreme court agreed with defendant and denied the motion. 

The Second Department in Quinn, affirmed.  In so doing the Court stated:

Here, that branch of the plaintiff’s motion which was to preliminarily enjoin [defendant] from any further construction work was rendered academic by completion of the project.  Enjoining further construction work where no further construction work is needed, or planned, would have no practical effect on the parties.  In reaching this determination, we note that the plaintiff, despite alleging that the defendants were, inter alia, trespassing and injuring her property, took no legal action to enforce her rights, enjoin the work, or preserve the status quo until after the work was nearly complete.

Quinn, 193 A.D.3d at 894-95 (citations omitted).  The Court also found that none of the exceptions to the application of the mootness doctrine were applicable in Quinn.

On June 17, 2021, the Appellate Division, Fourth Department, decided Matter of Sportsmen’s Tavern LLC v. New York State Liq. Auth., which analyzed the mootness doctrine.  The petitioner in Sportsman’s commenced a “hybrid CPLR article 78 and declaratory judgment action challenging COVID-19 pandemic-related guidance issued by respondent-defendant New York State Liquor Authority (SLA).”  The guidance “which Sportsmen’s was required to abide by pursuant to certain executive orders, prohibited advertised and ticketed main-draw music shows at licensed bars or restaurants and restricted live music at such establishments to only that which was incidental to the dining experience and not the draw itself.”  Supreme court “declared that the guidance constituted an unlawful content-based restriction, both facially and as applied, under the First Amendment of the United States Constitution and corresponding provisions of the New York State Constitution; declared that the guidance was arbitrary, capricious, and an abuse of discretion; and permanently enjoined SLA from enforcing the guidance.”  The Fourth Department dismissed SLA’s appeal as moot “[a]lthough neither party contend[ed] that the appeal should be [so] dismissed” because “mootness is a doctrine related to subject matter jurisdiction and thus must be considered by the court sua sponte.”  (Citation and internal quotation marks omitted.)

Discussing caselaw akin to that which is referenced supra, the Court recognized that “an appeal is moot unless an adjudication of the merits will result in immediate and practical consequences to the parties.”  (Citations, internal quotation marks and brackets omitted.)  The Court reasoned that “due to recent easing of pandemic-related restrictions, the prohibitions challenged in this case are no longer in effect [and, therefore,] the rights of the parties cannot be affected by the determination of this appeal and it is therefore moot.”

In finding that the exceptions to the application of the mootness doctrine were inapplicable to the appeal, the Court stated:

We conclude that the exception to the mootness doctrine does not apply here. In our view, although the issue of the lawfulness of the prior challenged guidance implemented as part of the extraordinary response to the COVID-19 pandemic is substantial and novel, that issue is not likely to recur.  Moreover, the issue is not of the type that typically evades review. Indeed, as the parties have acknowledged, the guidance at issue here prohibiting advertised and ticketed main-draw music shows has been reviewed on the merits by at least two other courts.  In any event, under the circumstances of this case, we would decline to invoke the mootness exception.

(Citations and internal quotation marks omitted, emphasis in original.)

Freiberger Haber LLP
Copyright ©2022 Freiberger Haber LLP | Disclaimer
Attorney advertisement | Prior results do not guarantee a similar outcome.
425 Broadhollow Road, Suite 416, Melville, NY 11747 | (631) 574-4454
420 Lexington Avenue, Suite 300, New York, NY 10017 | (212) 209-1005
Attorney Website by Omnizant