IN RE: Dana HENSLEY (2022)

MEMORANDUM AND ORDER

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

Memorandum: Petitioners-plaintiffs (petitioners) commenced these hybrid CPLR article 78 proceedings and declaratory judgment actions with nearly identical petitions-complaints (petitions) challenging COVID-19 pandemic-related guidance issued by respondents-defendants New York State Department of Health (DoH) and New York State Department of Education (DoE), pursuant to continuing executive orders signed by the Governor (collectively, respondents). Respondents appeal from an amended judgment which, among other things, granted judgment in favor of petitioners on the sixth cause of action in both petitions and declared that the guidance was arbitrary and capricious insofar as it placed different social distancing restrictions on elementary and secondary schools, and insofar as it used county-wide metrics to determine whether those restrictions apply to the school districts at issue.

After the amended judgment was issued, the guidance challenged by petitioners was withdrawn by respondents, the executive orders upon which the guidance was based expired, and the statutory scheme that permitted the Governor to issue the emergency guidelines upon which the DoH and DoE relied in promulgating that guidance was replaced. Thus, the parties correctly concede that this appeal is moot (see 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]). Contrary to respondents’ contention, the issue here is not likely to recur (see generally id. 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, 2014 WL 1281766 [2014]), and it “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]). Therefore, the exception to the mootness doctrine does not apply (see Matter of Pharaohs GC, Inc. v. New York State Liq. Auth., 197 A.D.3d 1010, 1011, 150 N.Y.S.3d 662 [4th Dept. 2021]; Matter of Sportsmen's Tavern LLC v. New York State Liq. Auth., 195 A.D.3d 1557, 1558, 150 N.Y.S.3d 453 [4th Dept. 2021]; cf. generally Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 [2012]).

Finally, “ ‘in order to prevent [the amended] judgment which is unreviewable for mootness from spawning any legal consequences or precedent,’ ” we vacate the amended 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 Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 718, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980]; see Funderburke v. New York State Dept. of Civ. Serv., 49 A.D.3d 809, 811-812, 854 N.Y.S.2d 466 [2d Dept. 2008]; see also Saratoga County Chamber of Commerce, 100 N.Y.2d at 812, 766 N.Y.S.2d 654, 798 N.E.2d 1047).