FRAGOSO v. ROMANO (2000)

In a proceeding for declaratory relief purportedly commenced pursuant to the Election Law, the appeal, as limited by the appellants' brief, is from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Cowhey, J.), entered March 5, 1999, as granted the petition.

ORDERED that the proceeding is converted to an action for a declaratory judgment, the order to show cause is deemed to be the summons, and the petition is deemed to be the complaint (see, CPLR 103[c];  Matter of Paladino v. Town of Harrison, 225 A.D.2d 698, 639 N.Y.S.2d 466);  and it is further,

ORDERED that the order and judgment is reversed insofar as appealed from, on the law, without costs or disbursements, and the complaint is dismissed.

 In order to maintain an action for a declaratory judgment, a party must present a concrete, actual controversy for adjudication (see, CPLR 3001;  Cuomo v. Long Is. Light. Co., 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 520 N.E.2d 546;  New York Public Interest Research Group v. Carey, 42 N.Y.2d 527, 530-531, 399 N.Y.S.2d 621, 369 N.E.2d 1155;  Matter of Guild of Administrative Officers of Suffolk County Community Coll. v. County of Suffolk, 126 A.D.2d 725, 728, 510 N.Y.S.2d 914;  Red Robin Stores v. Rose, 274 App.Div. 462, 467-468, 84 N.Y.S.2d 685).   When the Supreme Court issued its order and judgment, this case no longer involved a genuine controversy.   Instead, the case presented an abstract, hypothetical issue, the determination of which would not have an immediate practical effect and would not necessarily resolve the matter (see, New York Public Interest Research Group v. Carey, supra, at 531, 399 N.Y.S.2d 621, 369 N.E.2d 1155).   Thus, this is not a proper case for invoking the jurisdiction of the court to issue a declaratory judgment and the complaint should have been dismissed (see, Matter of Guild of Administrative Officers of Suffolk County Community Coll. v. County of Suffolk, supra, at 728, 510 N.Y.S.2d 914;  Red Robin Stores v. Rose, supra, at 468-469, 84 N.Y.S.2d 685).

MEMORANDUM BY THE COURT.