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Bylined Articles

The Mootness Doctrine

By Thomas R. Newman and Steven J. Ahmuty Jr.
March 5, 2024
New York Law Journal

The Mootness Doctrine

By Thomas R. Newman and Steven J. Ahmuty Jr.
March 5, 2024
New York Law Journal

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“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 Hearst v. Clyne, 50 N.Y.2d 707, 713 (1980). This principle prohibits courts from giving advisory opinions or ruling on “academic, hypothetical, moot or otherwise abstract questions.” Thus, “an appeal is moot unless adjudication on the merits will result in immediate and practical consequences to the parties.” Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012) (citation omitted).

Because “mootness is a doctrine related to subject matter jurisdiction,” (Matter of Grand Jury Subpoenas, 72 N.Y.2d 307, 311 (1988)), it may be raised at any point in the litigation, and will be raised by the court on its own motion whenever it detects a potential mootness issue. “In fact, it is incumbent upon counsel to inform the court of changed circumstances which render a matter moot.” Weeks Woodlands Association v. Dormitory Authority of State, 95 A.D.3d 747, 753 (1st Dept., 2012), aff’d 20 N.Y.3d 919 (2012) (citation omitted). The parties to an appeal should therefore notify the court whenever a change in circumstances may render an appeal moot. The failure to do so may result in sanctions.

Rule 500.6 of the Court of Appeals provides in pertinent part:

Counsel shall timely inform the Clerk’s Office and each other party by letter of all developments affecting appeals, section 500.27 certified questions, motions and criminal leave applications pending in this Court, including * * * circumstances or facts that could render the matter moot and pertinent developments in applicable case law, statutes and regulations.

Rule 1250.2(c) of the Appellate Division Practice Rules similarly provides:

“The parties or their attorneys shall immediately notify the when there is a settlement of a matter or any issue therein or when a matter or any issue therein has been rendered moot. * * * . Any party or attorney who, without good cause shown, fails to comply with the requirements of this subdivision may be subject to the imposition of sanctions.”

Mootness often results from the passage of time or a change in circumstances during the pendency of an appeal. A large number of cases involve the dismissal of an appeal for mootness where an intervening change of circumstances prevented the appellate court from rendering a decision that would determine an actual controversy between the parties.

For example, appeals have been dismissed for mootness recently where, during the pendency of an appeal from the respondent zoning board’s determination, the petitioner brewery that had allegedly violated the zoning code ceased operation and vacated the premises at issue, (see Tickner v. Town of Perinton, ___ A.D.3d ___, 2024 WL 508659 (4th Dept., Feb. 9, 2024)); where, during the pendency of the petitioner inmate’s appeal from a prison disciplinary finding, the Attorney General administratively reversed the finding at issue and expunged all references thereto from the petitioner’s institutional record, see Jude v. Rodriguez, ___ A.D.3d ___, 202 N.Y.S.3d 838 (3rd Dept., Feb. 8, 2024); where the defendant had completed serving the sentence imposed during the pendency of his appeal challenging the severity of his sentence, see People v. McMullen, ___ A.D.3d ___, 202 N.Y.S.3d 864 (4th Dept., Feb. 2, 2024)); and where an order authorizing the administration of psychotropic medications to an inmate over his objection had expired during the pendency of his appeal from the order, and was not renewed, see Matter of Clarence T., 222 A.D.3d 1275 (3rd Dept., Dec. 28, 2023).

With limited exceptions for governmental entities, service upon the adverse party of a notice of appeal from a judgment or order does not automatically stay its enforcement during the pendency of the appeal. CPLR 5519 provides various mechanisms by which an appellant may obtain a stay pending appeal, including an application under subdivision (c) for a discretionary stay.

CPLR 5518 further provides that “[t]he appellate division may grant, modify or limit a preliminary injunction or temporary restraining order pending an appeal or determination of a motion for permission to appeal in any case specified in section 6301 [grounds for preliminary injunction and temporary restraining order].” Failure to obtain a stay or similar injunctive relief to preserve the status quo can render an appeal moot.

In Kern v. Adirondack Park Agency, 223 A.D.3d 990 (3rd Dept., Jan. 11, 2024), for example, a group of residents who lived in or near a private area of Adirondack Park brought a proceeding seeking review of the Adirondack Park Agency’s decisions approving plans for development of a subdivision and permitting construction of an on-site wastewater treatment system there. Construction of the treatment system was completed during the pendency of the residents’ appeal from an order partially dismissing their petition.

The Appellate Division dismissed their appeal as moot, noting that the petitioners had made no effort to prevent the construction from commencing or continuing during the appeal:

Petitioners were acutely aware that Supreme Court vacated the temporary restraining order and construction of the wastewater treatment system could have been observed by petitioners as one of them is the adjoining landowner to respondents. Despite this, petitioners failed to seek any further injunctive relief. Moreover, petitioners did not quickly perfect their appeal, seeking two extensions. Removal of the wastewater treatment system would cause respondents undue hardship as they have expended significant funds installing the system.

Recurring Issue Exception

A narrow exception to the mootness doctrine “permits the courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable.” See Hearst, 50 N.Y.2d at 714. “An exception to the mootness doctrine may apply * * * where the issue to be decided, though moot, (1) is likely to recur, either between the parties or other members of the public, (2) is substantial and novel, and (3) will typically evade review in the courts.” See Coleman, 19 N.Y.3d at 1090 (citation omitted).

People ex rel. Rankin v. Brann, ___ N.Y.3d ___, 2024 WL 674202 (Feb. 20, 2024) is a recent example of the rare case in which the recurring issue exception to the mootness doctrine was applied. There, the defendant was initially arrested and charged with several felony offenses, including second-degree criminal possession of a weapon, which is a “qualifying offense” vesting the court with discretionary authority to utilize any of the three types of securing order—i.e., recognizance, bail, or commitment (see N.Y. Crim. Pro. L. [CPL] 510.10[4]). The court set bail and the defendant was released on her own recognizance.

While at liberty on the initial indictment, the defendant allegedly committed additional violent felony offenses resulting in a subsequent indictment. The People applied to modify the defendant’s securing order pursuant to CPL 530.60(1), so as to revoke bail and remand her due to the subsequent charges. CPL 530.60(1), which authorizes a court to revoke bail “for good cause shown,” does not set forth any particular requirement for what type of hearing, if any, is necessary.

Defense counsel argued that the court was required to conduct a hearing pursuant to CPL 530.60(2)(c), which requires an evidentiary hearing prior to modification of a securing order based on a defendant’s alleged commission of certain offenses while at liberty on prior felony charges.

The court determined that CPL 530.60(1) applied, examined risk of flight factors, cited the subsequent indictment as “good cause” for revocation of bail, and remanded the defendant without a CPL 530.60(2)(c) hearing.

Defense counsel commenced a habeas corpus proceeding in the Appellate Division seeking the defendant’s release on her own recognizance. The Appellate Division granted the writ to the extent of remitting the case to the Supreme Court to conduct a CPL 530.60(2)(c) hearing.

The court held that “where the sole basis for modification of the securing order is the [defendant’s] subsequent arrests and alleged commission of subsequent crimes * * * the Supreme Court should have * * * held the hearing required by CPL 530.60(2)(c).” See 201 A.D.3d 675, 677 (2d Dept., 2022). The defendant was granted leave to appeal to the Court of Appeals. See 38 N.Y.3d 913 (2022).

Following a CPL 530.60(2)(c) hearing held in accordance with the Appellate Division’s order, the Supreme Court continued the defendant’s remand, which rendered the pending appeal in the Court of Appeals moot. The court nevertheless applied the recurring issue exception to address the open issue of the proper statutory procedures for modification of securing orders based upon the defendant’s alleged commission of a violent felony offense while at liberty (see 2024 WL 674202, at *3, n.4):

The court’s order remanding defendant in accordance with the procedures in CPL 530.60(2)(c) rendered this appeal moot. The parties agree that defendant is no longer entitled to habeas relief. Because this appeal involves a novel issue that is likely to recur and will typically evade our review, however, we convert the proceeding to a declaratory judgment action and apply the mootness exception to resolve this open issue.

The Court of Appeals held that a court may modify a securing order based upon the defendant’s alleged commission of a violent felony offense while at liberty, either for “good cause” pursuant to CPL 530.60(1), after examining the risk of flight factors or pursuant to CPL 530.60(2), after assessing at a hearing whether there is reasonable cause to believe the defendant committed the additional offense while at liberty. See 2024 WL 674202, at *5.

To reiterate, the recurring issue exception to the mootness doctrine remains a narrow one that is rarely applied. See, e.g., Upstate University Hospital v. Bryant W., ___ A.D.3d ___, 2024 WL 508606 (4th Dept., Feb. 9, 2024) (exception inapplicable); Kern v. Adirondack Park Agency, supra (same); Jordan W. v. Amanda X., 223 A.D.3d 947 (3rd Dept., Jan. 4, 2024) (same).

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.