Opinion
2016–11826 Index No. 7410/15
09-18-2019
In the Matter of VILLAGE OF SOUTH BLOOMING GROVE, et al., Appellants, v. VILLAGE OF KIRYAS JOEL BOARD OF TRUSTEES, et al., Respondents-Respondents, Emanuel Leonorovitz, et al., Additional Respondents-Respondents.
Bryan Cave LLP, New York, N.Y. (Philip E. Karmel of counsel), for appellants. Whiteman Osterman & Hanna LLP, Albany, N.Y. (Michael G. Sterthous and Robert S. Rosborough IV of counsel), for respondents-respondents Village of Kiryas Joel Board of Trustees and Village of Kiryas Joel. Dickover, Donnelly & Donovan, LLP, Goshen, N.Y. (Michael H. Donnelly and Keane & Beane, LLP [Joel H. Sachs and Eric L. Gordon ], of counsel), for respondents—respondents Town of Monroe Town Board and Town of Monroe. Sive, Paget & Riesel P.C., New York, N.Y. (Steven Barshov of counsel), for additional respondents-respondents.
Bryan Cave LLP, New York, N.Y. (Philip E. Karmel of counsel), for appellants.
Whiteman Osterman & Hanna LLP, Albany, N.Y. (Michael G. Sterthous and Robert S. Rosborough IV of counsel), for respondents-respondents Village of Kiryas Joel Board of Trustees and Village of Kiryas Joel.
Dickover, Donnelly & Donovan, LLP, Goshen, N.Y. (Michael H. Donnelly and Keane & Beane, LLP [Joel H. Sachs and Eric L. Gordon ], of counsel), for respondents—respondents Town of Monroe Town Board and Town of Monroe.
Sive, Paget & Riesel P.C., New York, N.Y. (Steven Barshov of counsel), for additional respondents-respondents.
REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER Motion by the additional respondents to dismiss the appeal on the ground that it has been rendered academic. By decision and order on motion of this Court dated February 20, 2019, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the motion to dismiss the appeal is granted; and it is further,
ORDERED that the appeal is dismissed, without costs or disbursements.
The petitioners commenced this proceeding pursuant to CPLR article 78 to review, inter alia, determinations of the Village of Kiryas Joel Board of Trustees (hereinafter the Village Board) and the Town of Monroe Town Board (hereinafter the Town Board) which, among other things, adopted certain findings under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) and approved a proposed 164–acre annexation of land (hereinafter the disputed acreage) from the Town of Monroe to the Village of Kiryas Joel. In an order and judgment dated October 11, 2016, the Supreme Court, inter alia, denied those branches of the amended petition which were to review determinations of the Village Board and the Town Board to the extent that they related to the disputed acreage and dismissed those portions of the proceeding. The petitioners appeal from stated portions of the order and judgment. During the pendency of the appeal, as of January 1, 2019, the disputed acreage became part of the newly established Town of Palm Tree (see L 2018, ch 104). The establishment of the new Town of Palm Tree, which encompasses the disputed acreage, has rendered the appeal academic.
"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 Corp. v. Clyne , 50 N.Y.2d 707, 713, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). "This principle, which forbids courts to pass on academic, hypothetical, moot, or otherwise abstract questions, 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 713–714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). Accordingly, "an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal" ( id. at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ; see Matter of Denise V.E.J. [Latonia J.] , 163 A.D.3d 667, 669, 82 N.Y.S.3d 140 ).
Here, the establishment of the disputed acreage as part of the new Town of Palm Tree renders the proposed annexation of those acres of land from the Town of Monroe to the Village of Kiryas Joel academic since the land is no longer within the Town of Monroe. Therefore, any determination by this Court on the appeal will not affect the rights of the parties. While the petitioners seek a ruling on the SEQRA methodology used by the Village Board in reviewing the annexation, "[t]his is the only proposed [action] under review, and we cannot render an advisory opinion as to any different circumstances which may or may not arise in the future" ( Matter of Zutt v. State of New York , 99 A.D.3d 85, 106, 949 N.Y.S.2d 402 ).
Since the rights of the parties will not be directly affected by the determination of the appeal, and since the matter does not otherwise warrant invoking an exception to the mootness doctrine, we dismiss the appeal as academic (see Matter of Hearst Corp. v. Clyne , 50 N.Y.2d at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ; Nautilus Capital, LLC v. Rama Realty Assoc., LLC , 148 A.D.3d 817, 817, 49 N.Y.S.3d 486 ).
RIVERA, J.P., DILLON, ROMAN and DUFFY, JJ., concur.