IN RE: Robert LYNN (2019)

MEMORANDUM AND ORDER

Petitioner commenced this CPLR article 78 proceeding seeking to compel respondent Public Employment Relations Board (hereinafter PERB) to issue determinations on two improper practice charges that he filed in 2014.  In lieu of answering, PERB moved to dismiss the petition for, among other reasons, failure to exhaust administrative remedies.  Respondent State of New York separately moved, pre-answer, to dismiss the petition insofar as asserted against it on the ground that it was not a proper party to the proceeding.  Supreme Court granted the State's motion, denied PERB's motion and granted the petition on the merits, directing PERB to issue a determination on petitioner's improper practice charges within 60 days of service upon PERB of a copy of its order with notice of the entry.  PERB appeals, invoking an automatic stay of Supreme Court's judgment (see CPLR 5519[a][1] ).

During the pendency of this appeal, PERB issued a determination on petitioner's improper practice charges, thereby providing petitioner with all of the relief that he requested in his petition (see e.g. Matter of Johnson v. Evans, 76 A.D.3d 1164, 1164, 907 N.Y.S.2d 728 [2010], lv denied 16 N.Y.3d 702, 2011 WL 135304 [2011];  Matter of Cipperley v. Town of E. Greenbush, 240 A.D.2d 984, 985, 659 N.Y.S.2d 552 [1997];  Matter of Saratoga Harness Racing v. Corbisiero, 216 A.D.2d 776, 777, 628 N.Y.S.2d 442 [1995] ).  Thus, the rights of the parties would not be affected by a determination of this appeal on the merits, and it has therefore been rendered moot (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980];  Matter of Saratoga Harness Racing v. Corbisiero, 216 A.D.2d at 777, 628 N.Y.S.2d 442).  We are unpersuaded by PERB's contention that the exception to the mootness doctrine applies (see generally Matter of Hearst Corp. v. Clyne, 50 N.Y.2d at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876).  The controversy presented by this case evaded our review solely because PERB issued the requested determination during the pendency of the appeal.  Accordingly, we dismiss the appeal as moot.

ORDERED that the appeal is dismissed, as moot, without costs.

Clark, J.

Garry, P.J., Egan Jr., Lynch and Aarons, JJ., concur.