Opinion
No. 15993 Index No. 156401/20 Case No. 2021-01514
05-24-2022
In the Matter of New York State Construction Safety Association et al., Petitioners-Appellants, v. The New York City Department of Health and Mental Hygiene et al., Respondents-Respondents.
Dhillon Law Group, Inc., New York (Ronald D. Coleman of counsel), for appellants. Sylvia O. Hinds-Radix, Corporation Counsel, New York (Elina Druker of counsel), for respondents.
Dhillon Law Group, Inc., New York (Ronald D. Coleman of counsel), for appellants.
Sylvia O. Hinds-Radix, Corporation Counsel, New York (Elina Druker of counsel), for respondents.
Before: Renwick, J.P., Friedman, Gesmer, Mendez, Higgitt, JJ.
Appeal from order, Supreme Court, New York County (Eileen A. Rakower, J.), entered March 30, 2021, which denied the petition to annul and declare invalid a joint memorandum issued by respondents the New York City Department of Health and Mental Hygiene (DOHMH) and the New York City Department of Buildings (DOB) dated June 7, 2020, which provided property owners and contractors with guidance concerning enforcement of the New York State Department of Health (State DOH) Interim Guidance For Construction Activities During The Covid-19 Public Health Emergency, and various executive orders, and dismissed the hybrid proceeding brought pursuant to CPLR article 78, unanimously dismissed, without costs, as moot.
Petitioners sought to enjoin implementation and enforcement of the joint memorandum, requested a declaration that the memorandum was invalidly issued, and sought to dismiss DOB-issued violations and to vacate DOB stop work orders alleging violations of the State DOH requirements outlined in the memorandum. However, the memorandum explained that those requirements would be in force only until rescinded and amended by New York State. The Governor rescinded the State DOH requirements and the state of emergency in June 2021. As a result, an injunction would be a "legal impossibility" (AmBase Corp. v Spruce Capital Partners LLC, 168 A.D.3d 514, 515 [1st Dept 2019]), because any conclusion we might reach about the propriety of those requirements or the manner of their issuance "would have no practical effect on the rights or liabilities of these parties" (State of N.Y. ex rel. Harkavy v Consilvio, 8 N.Y.3d 645, 653 [2007]; see also Matter of Crumpley v Wack, 212 A.D.2d 299, 303 [1st Dept 1995], lv dismissed and denied 86 N.Y.2d 808 [1995]). Further, the violations and stop work orders annexed to the amended petition have been dismissed or rescinded, as shown by those exhibits and publicly available DOB records.