IN RE: SPORTSMEN'S TAVERN LLC (2021)

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed without costs and the judgment is vacated.

Memorandum: Petitioner-plaintiff Sportsmen's Tavern LLC (Sportsmen's) commenced this hybrid CPLR article 78 and declaratory judgment action challenging COVID-19 pandemic-related guidance issued by respondent-defendant New York State Liquor Authority (SLA). That guidance, which Sportsmen's was required to abide by pursuant to certain executive orders, prohibited advertised and ticketed main-draw music shows at licensed bars or restaurants and restricted live music at such establishments to only that which was incidental to the dining experience and not the draw itself. SLA appeals from a judgment that declared that the guidance constituted an unlawful content-based restriction, both facially and as applied, under the First Amendment of the United States Constitution and corresponding provisions of the New York State Constitution; declared that the guidance was arbitrary, capricious, and an abuse of discretion; and permanently enjoined SLA from enforcing the guidance. We conclude for the reasons that follow that the appeal should be dismissed as moot.

Although neither party contends that the appeal 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 for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO, 72 N.Y.2d 307, 311, 532 N.Y.S.2d 722, 528 N.E.2d 1195 [1988], cert denied 488 U.S. 966, 109 S.Ct. 492, 102 L.Ed.2d 529 [1988] [hereinafter, Grand Jury Subpoenas]; see People ex rel. Allen v. Warden, GMDC, N.Y. State Div. of Parole, 61 A.D.3d 541, 542, 878 N.Y.S.2d 19 [1st Dept. 2009]). Indeed, the jurisdiction of this Court “extends only to live controversies ․ [, and w]e are thus prohibited from giving advisory opinions or ruling on ‘academic, hypothetical, moot, or otherwise abstract questions’ ” (Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 810-811, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], cert denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 [2003]; see Matter of Harris v. Seneca Promotions, Inc., 149 A.D.3d 1508, 1509, 53 N.Y.S.3d 758 [4th Dept. 2017]). Courts are thus 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 N.Y.3d 499, 507, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010], quoting Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980]). “[A]n appeal is moot unless an adjudication of the merits will result in immediate and practical consequences to the parties” (Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 [2012]; see Maul, 14 N.Y.3d at 507, 903 N.Y.S.2d 304, 929 N.E.2d 366; Hearst Corp., 50 N.Y.2d at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876).

Here, due to recent easing of pandemic-related restrictions, the prohibitions challenged in this case are no longer in effect. We thus conclude that “the rights of the parties cannot be affected by the determination of this appeal and it is therefore moot” (Hearst Corp., 50 N.Y.2d at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876).

“An exception to the mootness doctrine may apply, however, 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, 19 N.Y.3d at 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158). Where the issue “falls within the well-recognized exception[,] ․ courts may exercise their extraordinary discretion to entertain the appeal notwithstanding mootness” (Grand Jury Subpoenas, 72 N.Y.2d at 311, 532 N.Y.S.2d 722, 528 N.E.2d 1195; see Saratoga County Chamber of Commerce, 100 N.Y.2d at 811, 766 N.Y.S.2d 654, 798 N.E.2d 1047; see also Matter of Duarte v. City of New York, 20 N.Y.3d 1067, 1068, 963 N.Y.S.2d 618, 986 N.E.2d 436 [2013]; Ayoub v. Ayoub, 14 N.Y.3d 921, 922, 905 N.Y.S.2d 125, 931 N.E.2d 94 [2010]).

We conclude that the exception to the mootness doctrine does not apply here. In our view, although the issue of the lawfulness of the prior challenged guidance implemented as part of the extraordinary response to the COVID-19 pandemic is substantial and novel, that issue is not likely to recur (see generally Saratoga County Chamber of Commerce, 100 N.Y.2d at 811-812, 766 N.Y.S.2d 654, 798 N.E.2d 1047; People v. Rikers Is. Corr. Facility Warden, 112 A.D.3d 1350, 1351, 976 N.Y.S.2d 915 [4th Dept. 2013], lv denied 22 N.Y.3d 864, 986 N.Y.S.2d 18, 9 N.E.3d 368 [2014]). Moreover, “the issue is not of the type that typically evades review” (Wisholek v. Douglas, 97 N.Y.2d 740, 742, 743 N.Y.S.2d 51, 769 N.E.2d 808 [2002]). Indeed, as the parties have acknowledged, the guidance at issue here prohibiting advertised and ticketed main-draw music shows has been reviewed on the merits by at least two other courts (see generally Matter of Kirkland v. Annucci, 150 A.D.3d 736, 738, 54 N.Y.S.3d 40 [2d Dept. 2017], lv denied 29 N.Y.3d 918, 2017 WL 4015611 [2017]). In any event, under the circumstances of this case, we would “decline to invoke the mootness exception” (Duarte, 20 N.Y.3d at 1068, 963 N.Y.S.2d 618, 986 N.E.2d 436; see Ayoub, 14 N.Y.3d at 922, 905 N.Y.S.2d 125, 931 N.E.2d 94).

Finally, “ ‘in order to prevent [the] judgment which is unreviewable for mootness from spawning any legal consequences or precedent,’ ” we vacate the judgment (Matter of Thrall v. CNY Centro, Inc., 89 A.D.3d 1449, 1451, 932 N.Y.S.2d 295 [4th Dept. 2011], lv dismissed 19 N.Y.3d 898, 949 N.Y.S.2d 341, 972 N.E.2d 507 [2012], quoting Hearst Corp., 50 N.Y.2d at 718, 431 N.Y.S.2d 400, 409 N.E.2d 876; see Matter of Olney v. Town of Barrington, 162 A.D.3d 1610, 1612, 80 N.Y.S.3d 563 [4th Dept. 2018]; see generally Saratoga County Chamber of Commerce, 100 N.Y.2d at 812, 766 N.Y.S.2d 654, 798 N.E.2d 1047).