LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-APPELLANTS.

GIBSON LAW FIRM, PLLC, ITHACA (SUJATA SIDHU GIBSON OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-RESPONDENTS.

PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND OGDEN, JJ.

MEMORANDUM AND ORDER It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Respondents-defendants appeal from a judgment that, insofar as appealed from, denied their motion to dismiss and, instead, granted the petition-complaint for a declaration that 10 NYCRR 2.61 —which mandated that "covered entities," i.e., hospitals, require that certain personnel be fully vaccinated against COVID-19 unless they fall within the regulation's medical exemption—was beyond the scope of authority of respondent-defendant New York State Department of Health (DOH) and was null, void, and of no effect. Upon the application of respondents-defendants, we granted a stay of the judgment pending appeal. During oral argument of the appeal, the attorney for respondents-defendants announced that DOH would cease enforcing the regulation and that formal repeal of the regulation would occur through the appropriate regulatory process. The regulation has now been repealed (see former 10 NYCRR 2.61, repealed by NY St Reg, Oct. 4, 2023 at 22). We agree with respondents-defendants for the reasons that follow that the appeal should be dismissed as moot.

The jurisdiction of this Court "extends only to live controversies ... [, and w]e are thus prohibited from giving advisory opinions or ruling on ‘academic, hypothetical, moot, or otherwise abstract questions’ " ( Saratoga County Chamber of Commerce v. Pataki , 100 N.Y.2d 801, 810-811, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003] ; see Matter of Sportsmen's Tavern LLC v. New York State Liq. Auth. , 195 A.D.3d 1557, 1558, 150 N.Y.S.3d 453 [4th Dept. 2021] ). Courts are thus generally "precluded ‘from considering questions which, although once live, have become moot by passage of time or change in circumstances’ " ( City of New York v. Maul , 14 N.Y.3d 499, 507, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010], quoting Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). "[A]n appeal is moot unless an adjudication of the merits will result in immediate and practical consequences to the parties" ( Coleman v. Daines , 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 [2012] ; see Maul , 14 N.Y.3d at 507, 903 N.Y.S.2d 304, 929 N.E.2d 366 ; Hearst Corp. , 50 N.Y.2d at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ).

Here, in terms of the substantive relief requested in their petition-complaint, petitioners-plaintiffs sought to enjoin enforcement of the regulation and a declaration that the regulation was unenforceable. The repeal of the regulation has rendered the appeal of the judgment granting that relief moot inasmuch as "[a] declaration as to the validity or invalidity of the [regulation] would ... have no practical effect on the parties" ( Saratoga County Chamber of Commerce , 100 N.Y.2d at 811, 766 N.Y.S.2d 654, 798 N.E.2d 1047 ; see Matter of Hensley v. Williamsville Cent. Sch. Dist. , 206 A.D.3d 1655, 1656, 170 N.Y.S.3d 412 [4th Dept. 2022] ; Matter of Pharaohs GC, Inc. v. New York State Liq. Auth. , 197 A.D.3d 1010, 1011, 150 N.Y.S.3d 662 [4th Dept. 2021] ; Sportsmen's Tavern LLC , 195 A.D.3d at 1558, 150 N.Y.S.3d 453 ).

"An exception to the mootness doctrine may apply, however, 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" ( Coleman , 19 N.Y.3d at 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 ). Where the issue "falls within the well-recognized exception[,] ... courts may exercise their extraordinary discretion to entertain the appeal notwithstanding mootness" ( Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO , 72 N.Y.2d 307, 311, 532 N.Y.S.2d 722, 528 N.E.2d 1195 [1988], cert denied 488 U.S. 966, 109 S.Ct. 492, 102 L.Ed.2d 529 [1988] ; see Saratoga County Chamber of Commerce , 100 N.Y.2d at 811, 766 N.Y.S.2d 654, 798 N.E.2d 1047 ; see also Matter of Duarte v. City of New York , 20 N.Y.3d 1067, 1068, 963 N.Y.S.2d 618, 986 N.E.2d 436 [2013] ; Ayoub v. Ayoub , 14 N.Y.3d 921, 922, 905 N.Y.S.2d 125, 931 N.E.2d 94 [2010] ).

We conclude that the exception to the mootness doctrine does not apply here. "[A]lthough the issue of the lawfulness of the [regulation] implemented as part of the extraordinary response to the COVID-19 pandemic is substantial and novel, that issue is not likely to recur" given the once-in-a-century nature of the pandemic and the emergency governmental response thereto ( Sportsmen's Tavern LLC , 195 A.D.3d at 1558, 150 N.Y.S.3d 453 ; see generally Saratoga County Chamber of Commerce , 100 N.Y.2d at 811-812, 766 N.Y.S.2d 654, 798 N.E.2d 1047 ). Moreover, "the issue is not of the type that typically evades review" ( Wisholek v. Douglas , 97 N.Y.2d 740, 742, 743 N.Y.S.2d 51, 769 N.E.2d 808 [2002] ; see Hensley , 206 A.D.3d at 1656, 170 N.Y.S.3d 412 ; Pharaohs GC, Inc. , 197 A.D.3d at 1011, 150 N.Y.S.3d 662 ; Sportsmen's Tavern LLC , 195 A.D.3d at 1558, 150 N.Y.S.3d 453 ). Indeed, the regulation at issue here received significant review from numerous state and federal courts (see Sportsmen's Tavern LLC , 195 A.D.3d at 1558-1559, 150 N.Y.S.3d 453 ). In any event, under the circumstances of this case, we would "decline to invoke the mootness exception" ( Duarte , 20 N.Y.3d at 1068, 963 N.Y.S.2d 618, 986 N.E.2d 436 ; see Ayoub , 14 N.Y.3d at 922, 905 N.Y.S.2d 125, 931 N.E.2d 94 ; Sportsmen's Tavern LLC , 195 A.D.3d at 1559, 150 N.Y.S.3d 453 ).

Inasmuch as the appeal is moot and the exception to the mootness doctrine does not apply, we are precluded from considering the merits of the issues raised on appeal and we "take no position on the propriety of the judgment appealed from" ( Johnston v. State Bd. of Elections , 79 A.D.2d 890, 890, 436 N.Y.S.2d 1020 [4th Dept. 1980], lv denied 52 N.Y.2d 706, 438 N.Y.S.2d 1026, 420 N.E.2d 402 [1981] ; see Sedita v. Board of Educ. of City of Buffalo , 43 N.Y.2d 827, 828, 402 N.Y.S.2d 566, 373 N.E.2d 365 [1977] ).