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Fabbricante v Fabbricante


2017 Slip Op 01676


This is an appeal, filed in Queens County, by the plaintiff from an Order to Show Cause. The OSC granted the defendants application to restrain the plaintiff from transferring their minor child from a school in Queens to a school in Nassau County. The court granted a motion to stay enforcement of the TRO, pending a hearing.

Ordered: the appeal was dismissed. The court considers this case academic.

The court said that it does not decide issues that have become moot, due to the change in circumstances or because of the passage of time (Bederman v Bederman 123 AD3d 1029, Saratoga Chamber of Commerce v. Pataki 100 NY 801, Hearst Corporation v Clyne 50 NY2d 707).

In this case, the plaintiff raises the issue of whether the stipulation of custody (that was agreed to in 2014), require their child to complete his 8th grade school year in Queens, or if he is able to go to a school closer to home in Nassau County.

However since then, the child has already finished the 8th grade, the issues raised by the plaintiff are considered academic at this point (Raven K. [Adam C.] 130 AD3d 622, Bederman v Bederman 123 AD3d 1029. The invocation of the mootness doesn’t apply here (Hearst Corporation v Clyne 50 NY2d 714, Saratoga Chamber of Commerce v. Pataki 100 NY2d 8110, Bederman v Bederman 123 AD3d 1029. The appeal is dismissed.

The concept of mootness addresses when is the appropriate time to hear a case. It is connected to the case or controversy requirement of the U.S. Constitution. This concept limits courts power in being able to hear a case where the actual people or entities (like a company), have a stake in the matter before the court.

A case is considered “moot” when the legal proceeding can’t affect the situation or the matter has otherwise moved out of the courts for a particular reason.

As example of this seen in DeFunis v Odegaard. Here the plaintiff was a law student who had been denied entry into law school. But by the time the case came up for trial, the plaintiff had already been accepted to another law school and in fact was close to graduation. In that case the Supreme Court determined that the case was moot. There was nothing that the Supreme Court could do to affect the outcome.

There are however, exceptions to this rule. These include the following:

Voluntary Cessation: If the defendant stops doing the thing that the plaintiff is suing for, the case will not be considered moot. This is based on the theory that the defendant can simply resume the activity after the plaintiff has dismissed the case.

Capable of repetition be evading review: If the plaintiff is in a position where they can be harmed again in the future (even if they aren’t currently being harmed), the case isn’t considered moot.

Class Action: A case isn’t considered moot if a person representing a class stops being a member of the class.

Ripeness is a somewhat similar concept and is used hand in hand with mootness. However it means something entirely different. If all the issues of a case aren’t prepared for review, the case is considered not to be “ripe.” This concepts harkens back to the case and controversy issue previously mentioned, because it requires that a dispute between two parties actually happened.

For example:  a plaintiff contracted to purchase 1,000 widgets from the defendant, to be delivered on December 1st. If she sues the defendant on November 30th anticipating the defendant is going to breach the contract, there would not be a case because the issue isn’t ripe.

This rule was created for the prohibition of the courts giving advisory opinions, or ruling on an issue that hasn’t happened yet.

If you have a legal dispute, it is important to consult with legal counsel to ensure that your legal interests are protected. Speak to an experienced lawyer from Stephen Bilkis and Associates for guidance and a free consultation. They have offices throughout the New York area, including locations in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County or Westchester County. Call them today at 1-800-NYNYLAW.

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