Opinion
November 12, 1985
Appeal from the Supreme Court, Westchester County (Walsh, J.).
Appeal dismissed as moot, with costs.
Special Term granted so much of respondents' cross motion as sought dismissal of the instant proceeding based upon the doctrine of primary jurisdiction, as prior to the commencement of this proceeding, respondents had appealed to the Commissioner of the Board of Education from the same determination which is under review in the instant article 78 proceeding. Both types of review of hearing panel determinations are permitted under Education Law § 3020-a (5). Before petitioner's appeal from the judgment of Special Term was heard by this court, the Commissioner of Education issued a decision which annulled the hearing panel's determination, made his own findings, and imposed a more severe penalty. The Commissioner's decision, which supplants the decision of the hearing panel upon which the instant proceeding is based, renders the propriety of Special Term's dismissal a moot issue (see, e.g, Governale v Porsche-Audi of Bay Ridge, 97 A.D.2d 457). As no controversy remains with respect to the judgment from which the appeal is taken, the appeal is dismissed as moot (see, Nassau Trust Co. v Filderman, 52 A.D.2d 588; City of Binghamton v Monserrate, 71 A.D.2d 745, lv denied 48 N.Y.2d 611). Were we to have decided the appeal on its merits, the judgment would have been affirmed. Mangano, J.P., Bracken, Weinstein, Lawrence and Kooper, JJ., concur.