| Funderburke v New York State Dept. of Civ. Serv. |
| 2008 NY Slip Op 02789 [49 AD3d 809] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Duke L. Funderburke, Appellant, v New York StateDepartment of Civil Service et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Barbara D. Underwood, BenjaminN. Gutman, and Sasha Samberg-Champion of counsel), for respondents New York StateDepartment of Civil Service, Daniel E. Wall, as President of the New York State Department ofCivil Service, and Robert W. Dubois, as Director of the Employee Benefits Division of the NewYork State Department of Civil Service. Jaspan Schlesinger Hoffman LLP, Garden City, N.Y. (Scott B. Fisher of counsel), forrespondents Uniondale Union Free School District, William K. Lloyd, as Superintendent of theUniondale Union Free School District, Lawrence D. Blake, as Assistant Superintendent forBusiness Affairs for the Uniondale Union Free School District, and Myrtle E. Dickson, asDirector of Personnel for the Uniondale Union Free School District.
In an action, inter alia, for a judgment declaring that the defendants are legally required toprovide the plaintiff with spousal health coverage for his same-sex spouse, the plaintiff appealsfrom an order of the Supreme Court, Nassau County (McCarty, J.), entered July 12, 2006, whichgranted the motion of the defendants New York State Department of Civil Service, Daniel E.Wall, as President of the New York State Department of Civil Service, and Robert W. Dubois, asDirector of the Employee Benefits Division of the New York State Department of Civil Service,and the separate motion of the defendants Uniondale Union Free School District, William K.Lloyd, as Superintendent of the Uniondale Union Free School District, Lawrence D. Blake, asAssistant [*2]Superintendent for Business Affairs of theUniondale Union Free School District, and Myrtle E. Dickson, of Director of Personnel for theUniondale Union Free School District, for summary judgment and denied his cross motion forsummary judgment.
Motions by the respondents to dismiss the appeal on the ground that the appeal has beenrendered academic, and cross motion by the appellant to vacate the order of the Supreme Court,Nassau County, entered July 12, 2006, in the event that the appeal is dismissed. By decision andorder on motion of this Court dated August 28, 2007 [2007 NY Slip Op 76467(U)], the motionsand cross motion were held in abeyance and were referred to the Justices hearing the appeal fordetermination upon the argument or submission thereof.
Upon the papers filed in support of the motions and cross motion, the papers filed inopposition thereto, and upon the argument of the appeal, it is,
Ordered that the motions and the cross motion are granted; and its further,
Ordered that appeal is dismissed as academic, without costs or disbursements, and the orderof the Supreme Court, Nassau County, entered July 12, 2006, and a subsequent order of the samecourt entered September 13, 2006, made upon reargument, are vacated.
The plaintiff is a retired school teacher previously employed by the defendant UniondaleUnion Free School District (hereinafter the District). In 2004, he and his same-sex partner ofmany years legally married in Ontario, Canada. The plaintiff then requested spousal health anddental insurance coverage from the District for his spouse. After the District denied the request,the plaintiff commenced this action against the District and the New York State Department ofCivil Service (hereinafter the DCS), as well as certain District and DCS officials and employees,seeking compensatory and injunctive relief and a declaration that the benefits had been illegallydenied. The Supreme Court granted the respective motions of the District and its officials andemployees, and the DCS and its officials and employees, for summary judgment. The plaintiffappeals.
During the pendency of the appeal, the DCS changed its policy regarding recognition offoreign same-sex marriages. The DCS now requires public employers within its jurisdiction toprovide full spousal benefits to same-sex couples validly married in another jurisdiction, andrequires all members of its health insurance program, including the District, to provide suchbenefits. The DCS further committed to the payment of out-of-pocket medical expenses incurredby the plaintiff in obtaining health coverage for his spouse from the time of the plaintiff'sapplication for spousal health coverage. On May 3, 2007 the District notified the plaintiff that hisspouse would be eligible to enroll in the Empire Plan, which is one of the medical and healthinsurance plans made available to employees of the State and its subdivisions. The Districtfurther changed its eligibility policy for its dental plan pursuant to a resolution of the Board ofEducation of the District, notified the plaintiff of the change, and committed to reimburse himthe maximum amount of dental coverage which would have been available to his spouse had hebeen enrolled in the program since the time that the initial coverage request was made.
"It is a fundamental principle of our jurisprudence that the power of a court to declare the lawonly arises out of, and is limited to, determining the rights of persons which are actuallycontroverted in a particular case pending before the tribunal" (Matter of Hearst Corp. v Clyne,50 NY2d 707, 713 [1980]). Courts are prohibited from rendering advisory opinions and "anappeal will be [*3]considered moot unless the rights of the partieswill be directly affected by the determination of the appeal and the interest of the parties is animmediate consequence of the judgment" (Matter of Hearst Corp. v Clyne, 50 NY2d 707,714 [1980]; see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801,810-811 [2003], cert denied 540 US 1017 [2003]; Matter of Jacobs v Biamonte, 38 AD3d 777 [2007]; Becher vBecher, 245 AD2d 408, 408-409 [1997]). In light of the defendants' voluntary change ofpolicy, the rights of the parties would not be directly affected by a determination of this appeal.Further, the exception to the mootness doctrine does not apply (see Wisholek v Douglas,97 NY2d 740, 742 [2002]; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715[1980]; Matter of Jacobs v Biamonte, 38 AD3d at 778). Accordingly, we dismiss theappeal as academic.
While it is the general policy of New York courts to simply dismiss an appeal which hasbeen rendered academic, vacatur of an order or judgment on appeal may be an appropriateexercise of discretion where necessary "in order to prevent a judgment which is unreviewable formootness from spawning any legal consequences or precedent" (Matter of Hearst Corp. vClyne, 50 NY2d 707, 718 [1980]; see Matter of Adirondack Moose Riv. Comm. v Boardof Black Riv. Regulating Dist., 301 NY 219, 220 [1950]; Matter of Schwartz v Dennison, 40 AD3d 218 [2007]; Matter ofMarinaccio v Boardman, 303 AD2d 896, 897 [2003]; Matter of Lichtel v Travis, 287AD2d 837, 838-839 [2001]; Matter of Finkelstein v New York State Bd. of Law Examiners,241 AD2d 728, 729-730 [1997]; Matter of DIP Pharm. v Perales, 211 AD2d 790[1995]). " '[A] party who seeks review of the merits of an adverse ruling, but is frustrated by thevagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment' "(Matter of Ruskin v Safir, 257 AD2d 268, 273 [1999], quoting US Bancorp MortgageCo. v Bonner Mall Partnership, 513 US 18, 25 [1994]). Here, our review of the order hasbeen rendered academic by the unilateral actions of the respondents (cf. Matter of NRG Energy, Inc. v Crotty,18 AD3d 916, 920 [2005]), and we thus dismiss the appeal. Further, the SupremeCourt's orders could spawn adverse legal consequences for the plaintiff or be used as precedent infuture cases, causing confusion of the legal issues in this area of the law (cf. Martinez vCounty of Monroe, 50 AD3d 189 [4th Dept 2008]). Accordingly, we grant the plaintiff'scross motion to vacate the order entered July 12, 2006 and we vacate a subsequent order enteredSeptember 13, 2006, which, upon reargument, adhered to the determination made in the initialorder. Skelos, J.P., Fisher, Dillon and McCarthy, JJ., concur. [See 13 Misc 3d 284(2006)].