| Simon v Nortrax N.E., LLC |
| 2007 NY Slip Op 08210 [44 AD3d 1027] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Joseph Simon, Respondent, v Nortrax N.E., LLC, et al.,Defendants, and A. Montano Company, Inc., Appellant. |
—[*1] Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Kevin D. O'Dell ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant A. Montano Company,Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, WestchesterCounty (LaCava, J.), entered August 17, 2006, as denied that branch of its motion which was "fora declaration that this action was commenced on September 21, 2005."
Ordered that the order is affirmed insofar as appealed from, with costs.
"The courts of New York do not issue advisory opinions for the fundamental reason that inthis State '[t]he giving of such opinions is not the exercise of the judicial function' " (Cuomov Long Is. Light. Co., 71 NY2d 349, 354 [1988], quoting Self-Insurer's Assn. v StateIndus. Commn., 224 NY 13, 16 [1918]). Thus, courts may not issue judicial decisions which"can have no immediate effect and may never resolve anything" (New York Pub. InterestResearch Group v Carey, 42 NY2d 527, 531 [1977]). Here, the appellant moved, inter alia,for a declaration that this action was commenced on September 21, 2005 to determine theviability of a potential defense based upon the enactment of the Transportation Equity Act of2005 (49 USCA § 30106), which went into effect on August 10, 2005. Under thesecircumstances, that branch of the appellant's motion which was for an order declaring the date ofcommencement of the action constituted, in essence, an impermissible request for an advisoryopinion. Since the appellant was not entitled to such relief, the Supreme Court properly deniedthat branch of its motion. Spolzino, J.P., Krausman, Fisher and Angiolillo, JJ., concur.