Judith Klein, Petitioner–Appellant, v. New York City Administration for Children's Services, Respondent–Respondent. (2011)

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Appeal from order, Supreme Court, New York County (Michael D. Stallman, J.), entered September 25, 2009, which denied petitioner's motion to amend the caption to appear as representative of a putative class, and appeal from order and judgment (one paper), same court and Justice, entered October 2, 2009, which denied the petition and granted respondent's cross motion to dismiss the proceeding brought pursuant to CPLR article 78, unanimously dismissed as moot, without costs.

Petitioner commenced this proceeding seeking to set aside certain provisions of respondent's policy used in administering preventive housing subsidies as contrary to state and local law and regulations.   Specifically, she challenges Social Services Law

§ 409–a(5)(c), which provides that rental subsidies and other assistance be made available to families separated due to lack of available housing, and 18 NYCRR 423.2(b)(16)(i), which defines “other assistance” as including “essential repairs” to make housing adequate.

However, while these appeals were pending, petitioner's child was released from the foster care system into the custody of an out-of-state relative.   Preventive housing subsidies are only available in situations where children are already in the foster care system, or where they may be placed in or returned to foster care (see Social Services Law § 409–a[5][c] and 18 NYCRR 423.2[b] ).  As such, petitioner is no longer eligible for the subsidy on which her challenge to respondent's policy is based.

Due to this change in circumstances, petitioner's rights will no longer be directly affected by the determination of the appeals and the judgment will not have an immediate consequence for her (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 [1980] ).   Accordingly, the matter has been rendered moot and the exception to the mootness doctrine does not apply (see id. at 714–715;  Duane Reade Inc. v Local 338, Retail, Wholesale, Dept. Store Union, UFCW, AFL–CIO, 11 AD3d 406 [2004] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK