Kennedy v. Suffolk Cnty.

211 A.D.3d 926

181 N.Y.S.3d 291

John M. KENNEDY, Jr., etc., respondent,

v.SUFFOLK COUNTY, et al., appellants.

2020–00415

Index No. 604808/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 11, 2022

December 21, 2022

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Joseph E. Macy and Daniel J. Evers of counsel), for appellants.

Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, NY (Peter A. Bee and Jason Greenfield of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action for declaratory relief, the defendants appeal from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated January 9, 2020. The order, insofar as appealed from, granted the plaintiff's motion for summary judgment on the complaint, and denied that branch of the defendants’ cross motion which was for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion for summary judgment on the complaint is denied, and that branch of the defendants’ cross motion which was for summary judgment dismissing the complaint is granted.

Relevant facts underlying this appeal are set forth in a related appeal (see Matter of County of Suffolk v. Kennedy, 211 A.D.3d 926, 181 N.Y.S.3d 291 [decided herewith]).

On or about January 25, 2018, the defendant Suffolk County Department of Parks, Recreation, and Conservation (hereinafter DOP) issued a request for proposals for a licensee to renovate, operate, and manage a food service and related activities concession at certain parks in the defendant Suffolk County (hereinafter the parks RFP). On or about February 20, 2018, the plaintiff, John M. Kennedy, Jr., in his official capacity as the Suffolk County Comptroller, sent an audit engagement letter to DOP, informing it that he intended to initiate an audit of the parks RFP. DOP disputed the plaintiff's authority to conduct the audit, and ultimately retained outside counsel. On or about March 1, 2018, the plaintiff sent a subpoena to the defendant Philip A. Berdolt, in his official capacity as the Commissioner of DOP, for documents related to the parks RFP.

Thereafter, the plaintiff commenced this action for declaratory relief. The first cause of action sought a judgment declaring, in effect, that the plaintiff had the authority to conduct a performance audit of the parks RFP. The second cause of action sought a judgment declaring, in effect, that the plaintiff had the authority to conduct prospective performance audits of RFPs issued by the County and any County department.

On or about March 21, 2018, the parties entered into a so-ordered stipulation, which provided, inter alia, that DOP would provide the plaintiff with "copies of all documents previously identified in the [s]ubpoena ... and all other documents related to the RFP [p]rocess," and that "[u]pon receiving all of the documentation," the plaintiff would withdraw the subpoena. On or about April 9, 2019, the plaintiff moved for summary judgment on the complaint. The defendants opposed the motion, and cross-moved, inter alia, for summary judgment dismissing the complaint. By order dated January 9, 2020, the Supreme Court granted the plaintiff's motion and denied the defendants’ cross motion. The defendants appeal.

"The Supreme Court ‘may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed’ " ( Matter of Enlarged City School Dist. of Middletown v. City of Middletown, 96 A.D.3d 840, 841, 946 N.Y.S.2d 208, quoting CPLR 3001 ). "To constitute a ‘justiciable controversy,’ there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect" ( Chanos v. MADAC, LLC, 74 A.D.3d 1007, 1008, 903 N.Y.S.2d 506 ; see New York Pub. Interest Research Group v. Carey, 42 N.Y.2d 527, 531–532, 399 N.Y.S.2d 621, 369 N.E.2d 1155 ; Matter of Enlarged City School Dist. of Middletown v. City of Middletown, 96 A.D.3d at 841–842, 946 N.Y.S.2d 208 ). It is axiomatic that "[c]ourts are generally prohibited from issuing advisory opinions or ruling on hypothetical inquiries" ( Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 ).

Thus, pursuant to the mootness doctrine, courts are precluded "from considering questions which, although once live, have become moot by passage of time or change in...