New York courts cannot issue advisory opinions on hypothetical or uncertain future events. A declaratory judgment is different: it can clarify parties’ legal rights before a breach, but only when there is a real, present dispute and the ruling would have a practical effect. Courts may decline declaratory relief when the dispute is premature or hypothetical.
The terms advisory opinions and declaratory judgments may sound similar, but an advisory opinion is quite different from a declaratory judgment. Decisions found to be advisory opinions are routinely dismissed if the matter is appealed.
Advisory opinions
An advisory opinion is a “nonbinding statement by a court of its interpretation of the law on a matter submitted for that purpose.” Garner, Black’s Law Dictionary (12th ed. 2024). The “function of the courts is to determine controversies between litigants” and not to “give advisory opinions. The giving of such opinions is not the exercise of the judicial function” or “the proper role of the courts under a common-law system.” New York Public Interest Research Group v. Carey, 42 NY2d 527, 529-530 (1977).
As a matter of law, an action “may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur.” American Ins. Ass'n v. Chu, 64 NY2d 379, 385 (1985). It is “inappropriate for courts to issue advisory opinions where there is no justiciable controversy... If a decision rendered by the court ‘might ultimately prove to have no effect on the substantial rights of either party’ the complaint should be dismissed.’” Employers' Fire Ins. Co. v. Klemons, 229 AD2d 513, 514, 645 NYS2d 849, 851 (2d Dept. 1996) (citation omitted).
A “request for a declaratory judgment is premature if the future event is beyond the control of the parties and may never occur... Then any determination the court may make would be merely advisory since it can have no immediate effect and may never resolve anything.” New York Public Interest Research Group v. Carey, 42 NY2d 527, 531 (1977). “It is therefore settled law that an action “may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur.” Cuomo v. Long Island Lighting Co., 71 N.Y.2d 349, 354 (1988).
In New York, courts do not issue advisory opinions “for the fundamental reason that in this state ‘[t]he giving of such opinions is not the exercise of the judicial function.’” Cuomo v. Long Island Lighting Co., 71 NY2d 349, 354 (1988). This is “a constitutional command defining the proper role of the courts under a common-law system.” New York Pub. Interest Research Group, Inc. v. Carey, 42 NY2d 527, 529-530 (1977).
“The role of the judiciary is to 'give the rule or sentence'..., and thus the courts may not issue judicial decisions that ‘can have no immediate effect and may never resolve anything.’... It is therefore settled law that an action ‘may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur.’” Cuomo v. Long Island Lighting Co., 71 NY2d 349, 354 (1988) (citations omitted); U.S. Bank Natl. Assn. v. McCaffery, 186 AD3d 897, 899, 130 NYS3d 33, 36 (2d Dept. 2020).
“While parties are free to chart their own procedural course, and may stipulate to limit issues on appeal, they cannot compel the court to render an advisory opinion.” Scope v. Federated Dept. Stores, Inc., 26 AD3d 226, 809 NYS2d 46 (1st Dept. 2006). For example, since facts adduced at trial may differ from those adduced on a pretrial motion for summary judgment dismissing the complaint, “an evidentiary ruling made before trial is generally reviewable only in connection with an appeal from the judgment rendered after trial.” Ibid.
An order ruling on a motion in limine, “even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission.” Nikel v. 5287 Transit Road, LLC, 215 AD3d 1230, 1231, 186 NYS3d 755, 756 (4th Dept. 2023); Innovative Transmission & Engine Co., LLC v. Massaro, 63 AD3d 1506, 1507, 879 NYS2d 856 (4th Dept. 2009).
In Turner v. State, 120 AD3d 796, 797, 991 NYS2d 363 (2d Dept. 2014), a claim to recover damages for unjust conviction and imprisonment, the claimant appealed from an order of the Court of Claims denying his motion to admit into evidence an affidavit of a recanting witness. The appeal was dismissed “because it concerns an evidentiary ruling which, even when made in advance of trial on motion papers, is neither appealable as of right nor by permission.”
The Court of Appeals jurisdiction “extends only to live controversies” and it too is “prohibited from giving advisory opinions or ruling on “academic, hypothetical, moot, or otherwise abstract questions.” Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 810-811 (2003). Thus, where changed circumstances prevent the court “’from rendering a decision which would effectually determine an actual controversy between the parties involved,’ [it] will dismiss the appeal or reverse the lower court order and direct that court to dismiss the action.”
In T.D. v. New York State Office of Mental Health, 91 NY2d 860, 862 (1997), plaintiffs sought to have declared invalid regulations promulgated by defendant New York State Office of Mental Health (OMH), pertaining to experimental medical research on patients or residents of OMH facilities deemed incapable of giving consent.
The Court of Appeals found that “once the Appellate Division in its decision below had concluded that the challenged regulations were invalid because OMH lacked statutory authority to promulgate them, it was unnecessary under the circumstances here presented to prospectively declare the regulations invalid on additional common-law, statutory, and constitutional grounds. In doing so, the Appellate Division issued an inappropriate advisory opinion.” The appeal was dismissed.
In Retail Software Services, Inc. v. Lashlee, 71 NY2d 788, 790-791 (1988), plaintiff, a New York corporation entered into franchise agreements with a California franchisor (SCI), for retail stores to be in New York. SCI went bankrupt and never performed the agreement.
Plaintiff commenced suit in federal court seeking recovery of deposits it paid and expenses it incurred under the agreements. On appeal from the District Court, the Second Circuit certified the following question: “[W]hether New York's Franchise Sales Act, N.Y. Gen. Bus. Law §686 (McKinney 1984), provides a basis for personal jurisdiction as well as a method for service of process.”
Although the Court of Appeals had accepted the question for review, upon such review it concluded “the question, as proffered, does not satisfy our State constitutional requirement that the question certified ‘may be determinative of the cause * * * pending in the certifying court’” and declined to answer the question, stating: “If we were to answer the question, as framed, in the affirmative, we would establish only the abstract proposition that, in some circumstances, section 686 provides a basis for jurisdiction. Such an answer would not necessarily determine, for example, whether the statute provides a basis for jurisdiction where, as in the present case, the individual defendants have apparently engaged in no activities within this State.”
Declaratory Judgments
Courts may be asked to declare the rights and obligations of parties even before the breach of any agreement has occurred and there is any need or right to resort to coercive measures. In such a case a declaratory judgment action may be brought under CPLR §3001, which states: “The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.”
But there must be “a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect.” Cong. Machon Chana v. Machon Chana Women's Inst., Inc., 162 AD3d 635, 636-637, 80 NYS3d 61 (2d Dept. 2018). And the justiciable controversy must be “one solvable by a court rather than some other forum.” Schulz v. Silver, 212 AD2d 293, 629 NYS2d 316 (3rd Dept. 1995). “If a court declines to render such a judgment it shall state its grounds.” CPLR §3001.
“The courts do not make mere hypothetical adjudications, where there is no presently justiciable controversy before the court, and where the existence of a ‘controversy’ is dependent upon the happening of future events.” Prashker v. United States Guarantee Co., 1 NY2d 584, 592 (1956).
The “granting of declaratory relief is discretionary” (Board of Educ. of Freeport Union Free School Dist. v Nyquist, 50 NY2d 889, 891 [1980]), and “the use of a declaratory judgment should only be exercised where it would be “useful and necessary.” Brennan Ctr. for Justice at NYU School of Law v. New York State Bd. of Elections, 52 Misc3d 246, 29 NYS3d 758, 776–77 (NY Sup. Ct. 2016), aff’d 159 AD3d 1299, 73 NYS3d 666 (3d Dept. 2018).
Such “discretion must be exercised judicially and with care[,]” thus the use of a declaratory judgment should only be exercised where it would be “useful and necessary” (Brennan Center for Justice, supra, 52 Misc.3d at 268, 29 NYS3d 776-77). “There is no absolute right to a declaratory judgment such as exists in other forms of actions seeking to establish existing legal rights.” Ibid.
“The ‘justiciable controversy’ upon which a declaratory judgment may be rendered requires not only that the plaintiffs in such an action have an interest sufficient to constitute standing to maintain the action but also that the controversy involve present, rather than hypothetical, contingent or remote, prejudice to plaintiffs.” (American Ins. Assn. v. Chu, 64 NY2d 379, 383 [1985]); Tomasulo v. Village of Freeport, 151 AD3d 1100, 1101-1102, 58 NYS3d 440 (2d Dept. 2017).
“A request for a declaratory judgment is premature if the future event is beyond the control of the parties and may never occur... Then any determination the court may make would be merely advisory since it can have no immediate effect and may never resolve anything... Thus, it is settled that the ‘courts will not entertain a declaratory judgment action when any decree that the court might issue will become effective only upon the occurrence of a future event that may or may not come to pass.’” New York Public Interest Research Group, Inc. v. Carey, 42 NY2d 527, 531 (1977) (citations omitted).
“A declaratory judgment is intended ‘to declare the respective legal rights of the parties based on a given set of facts, not to declare findings of fact’” (Touro Coll. v. Novus Univ. Corp., 146 AD3d 679, 679 [2017], quoting Thome v. Alexander & Louisa Calder Found., 70 AD3d 88, 100 [2009]). “‘A cause of action for declaratory relief accrues when there is a bona fide, justiciable controversy between the parties,'” Westhampton Beach Assoc., LLC v. Incorporated Vil. of Westhampton Beach, 151 AD3d 793, 796 [2017], quoting Zwarycz v. Marnia Constr., Inc., 102 AD3d 774, 776 [2013].
“To constitute a ‘justiciable controversy,’ there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect.” Chanos v. MADAC, LLC, 74 AD3d 1007, 1008 [2010]) Cong. Machon Chana v. Machon Chana Women's Inst., Inc., 80 NYS3d 61 (App. Div. 2d Dept. 2018).
Thomas R. Newman is a member at Duane Morris.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.
