Courts only decide active disputes, not hypothetical or moot issues. Cases are dismissed as moot if circumstances change so that a decision no longer affects the parties. Exceptions exist for issues of public importance or those likely to recur. If no practical impact remains, courts will generally dismiss the case.
Courts are not in the business of making mere hypothetical adjudications. Their jurisdiction extends only to live controversies. Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 NY2d 801, 810 (2003). “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 NY2d 707, 713 (1980). Our courts are “forbid[den] to pass on academic, hypothetical, moot, or otherwise abstract questions.”
Before the court is empowered to render a declaratory judgment, there must be a presently justiciable controversy, not just “the existence of a ‘controversy’ [that] is dependent upon the happening of future events.” Prashker v. United States Guarantee Co., 1 NY2d 584, 592 (1956). See CPLR §3001.
The issue of mootness “can be raised at any time and, in fact, it is incumbent upon counsel to inform the court of changed circumstances which render a matter moot.” Weeks Woodlands Ass'n, Inc. v. Dormitory Auth. of State, 95 AD3d 747, 753, 945 NYS2d 263, 269 (1st Dept. 2012), aff'd, 20 NY3d 919 (2012).
Even if neither party contends that the appeal before the court should be dismissed as moot, “mootness is a doctrine related to subject matter jurisdiction and thus must be considered by the court sua sponte.” Matter of Grand Jury Subpoenas, etc., 72 NY2d 307, 311, (1988); Sportsmen's Tavern LLC v. New York State Liquor Auth., 150 NY3d 453, 455 (4th Dept. 2021). A “defect in subject matter jurisdiction is not curable, even by consent of the parties.” Cerniglia v. Ambach, 145 AD2d 893, 894, 536 NYS2d 227 (3d Dept. 1988).
Courts “are 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 NY3d 499, 507 (2010). An appeal is moot “unless an adjudication of the merits will result in immediate and practical consequences to the parties.” Coleman v. Daines, 19 NY3d 1087, 1090 (2012); Medical Professionals for Informed Consent v. Bassett, 220 AD3d 1157, 1158, 197 NYS3d 785, 787 (4th Dept. 2023). An appeal “is not rendered moot if there remain undetermined rights or interests which the respective parties are entitled to assert.” Matter of Grand Jury Subpoenas etc., 72 NY2d 307, 311 (1988).
In determining whether an appeal has been rendered moot, the appellate court is not confined to the record created in the courts below.
The court may consider new and uncontroverted facts supplied in an affidavit in support of a motion to dismiss and will take judicial notice of such matters as newly enacted legislation that may have the effect of rendering a question moot. See Matter of Validation Review Associates, Inc., 91 NY2d 840 (1997), a proceeding to dissolve a corporation where, at oral argument of the appeals, counsel for both parties indicated that the corporation was in dissolution and a receiver had been appointed.
Postargument submissions demonstrated that any determination rendered by the Court of Appeals would be academic. Therefore, the court dismissed the proceeding as moot.
The jurisdiction of the Court of Appeals (as well as the Appellate Division) “extends only to live controversies.” The court 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). Where the facts presented prevent the court from rendering a decision which would determine an actual controversy between the parties involved, the action will be dismissed.
Appeals are subject to dismissal as moot unless the issue presented, even though moot as between the parties, is novel and of great public importance and likely to recur with some frequency. Zadar Const. & Woodworking, Inc. v. Charter Woodworking Corp., 140 AD2d 603, 604, 528 NYS2d 998 (2d Dept. 1988) (“there is no longer any purpose to the instant appeal... As there is no showing... that the case involves a matter of great public importance, that it affects the entire state or that it presents a controversy likely to arise with frequency, the appeal is dismissed”).
Not every case in which the issues are of public importance and likely to arise again will be considered on the merits. See Koenig v. Morin, 43 NY2d 737, 738 (1977), where the issue was the validity of a resolution of a County Legislature whereby every county officer and employee would be furloughed without pay for ten days during a specified year.
By reason of litigation challenging the resolution, the furlough program was never implemented. By the time the case reached the Court of Appeals the year was over and the authority of the resolution exhausted.
Despite the significance of the issues presented the Court of Appeals reversed and directed that the complaint be dismissed as moot, explaining: “It is because of the importance of the issues and the legal and practical difficulties which ineluctably would attend their resolution that in a sense of responsible judicial restraint we decline the invitation of the parties to address and determine the issues presented in this proceeding.” 43 NY2d at 738.
In Vignali v. City of New York, 222 AD3d 419, 420, 201 NYS3d 18, 19 (1st Dept. 2023), lv. to app. den. 42 NY3d 905 (2024), the court rejected as moot petitioner's challenge to the denial of his request for a religious exemption to a vaccination mandate, that had been repealed and was never enforced against petitioner.
The court found the “possibility that some form of vaccine mandate might be enforced at some unknown time in the future does not provide a basis for the proceeding to escape the mootness doctrine, and the likelihood of such a mandate is, in any event, speculative.”
In AG Super Fund Intern. Partners, L.P. v. Winthrop Realty Trust, 149 AD3d 629, 53 NYS3d 48 (1st Dept. 2017), plaintiffs brought an action against a trust seeking a declaration that a fee-shifting bylaw adopted by the trust was unenforceable. That bylaw was only triggered if plaintiffs sued defendant and failed to obtain “a judgment on the merits that substantially achieves, in substance and amount, the full remedy sought.”
The complaint was dismissed, the court finding “plaintiffs' challenge to the bylaw is not a justiciable controversy, because the applicability of the bylaw depends on a future event that is beyond the parties' control and may never occur.”
The Appellate Division affirmed, stating that “[w]hile the commencement of a suit is within plaintiffs' control, the outcome of such a suit is not; whether plaintiffs are entitled to the declaratory judgment they seek is dependent upon that outcome.”
Exception to the Mootness Doctrine
An exception to the mootness doctrine may apply “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 v. Daines, supra, 19 NY3d at 1090; Wisholek v. Douglas, 97 NY2d 740, 742 (2002) (court has “discretion to review a case if the controversy or issue involved is likely to be repeated, typically evades review, and raises substantial and novel questions”).
“[O]n occasion,” the Court of Appeals has “decided questions which, even though moot as between the parties, affect the entire State, or where the issue is likely to arise with frequency.” Sedita v. Board of Ed. of City of Buffalo, 43 NY2d 827, 828 (1977). See also, Arnold v. District Council No. 9, Intern. Broth. of Painters and Allied Trades, 46 NY2d 999, 1001 (1979) (Where “the dispute is one which is apt to recur,” the Court of Appeals has declined an “invitation to dismiss the action as moot and [has] instead determined to resolve the merits... in the context of a declaratory judgment.”).
For example, Matter of Storar, 52 NY2d 363, 369-370 (1981), involved two cases where the guardians of incompetent patients objected to the continued use of medical treatments or measures to prolong the lives of the patients who were diagnosed as fatally ill with no reasonable chance of recovery.
Both patients died during the pendency of their appeals, rendering their cases moot. The Court of Appeals addressed the issues presented because they were “of public importance, are recurring in other courts throughout the state and... are likely to escape full appellate review... Under those circumstances we may, and often have addressed the issues despite the mootness,... particularly when, as here, the controlling principles have not been previously identified and discussed by this court.”
Le Drugstore Etats Unis, Inc. v. New York State Bd. of Pharm., 33 NY2d 298 (1973), involved the right of a retailer to use the name “Le Drugstore” for a “mini-department store” consisting of boutiques, a restaurant and other shops modeled on a European merchandising technique. The Education law expressly forbade use of the name “drug store” by other than a licensed pharmacy.
The store announced that it was “Not a Pharmacy.” Special Term granted plaintiff summary judgment declaring it could conduct its business under the name “Le Drugstore” so long as no drugs were sold and an exterior sign stated “Not a Pharmacy”.
The Appellate Division, with two dissenters, affirmed and defendants appealed to the Court of Appeals as of right based on the dissents. While that appeal was pending, plaintiff closed its business and moved to dismiss the appeal on grounds of mootness.
The motion to dismiss for mootness was denied and the order of the Appellate Division reversed, the Court of Appeals finding “the question of whether, and under what circumstances, an unlicensed retailer may use the name ‘drug store’ is of considerable continuing public importance. For that reason the appeal should not be dismissed as moot.”
Thomas R. Newman is of counsel at Duane Morris and Steven J. Ahmuty, Jr. is a retired partner from Shaub, Ahmuty, Citron & Spratt.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.
