| Hirschfeld v Hogan |
| 2009 NY Slip Op 01774 [60 AD3d 728] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Sidney Hirschfeld, Respondent, v Michael F. Hogan et al.,Appellants. |
—[*1] Mental Hygiene Legal Service, Mineola, N.Y. (Sidney Hirschfeld pro se, Felicia B. Rosen,and Dennis B. Feld of counsel), for respondent.
In an action for declaratory and injunctive relief, the defendants appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), enteredNovember 26, 2007, as denied those branches of their cross motion which were to dismiss thecomplaint pursuant to CPLR 3211 (a) (3), (5) and (7), and granted that branch of the plaintiff'smotion which was for summary judgment declaring that both Mental Hygiene Legal Service anda voluntary patient at a mental health facility under the age of 16 years have the right to requestthat patient's release from such a facility pursuant to Mental Hygiene Law § 9.13 (b).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the plaintiff's motion which was for summary judgment declaring that both MentalHygiene Legal Service and a voluntary patient at a mental health facility under the age of 16years have the right to request that patient's release from such a facility pursuant to MentalHygiene Law § 9.13 (b) is denied, that branch of the defendants' cross motion which wasto dismiss the complaint pursuant to CPLR 3211 (a) (3) for lack of standing is granted, and thosebranches of the defendant's cross motion which were to dismiss the complaint pursuant to CPLR3211 (a) (5) and (7) are denied as academic.
"Standing is an element of the larger question of justiciability. The various tests that havebeen devised to determine standing are designed to ensure that the party seeking relief has a[*2]sufficiently cognizable stake in the outcome so as to 'cast[ ]the dispute in a form traditionally capable of judicial resolution' " (Community Bd. 7 ofBorough of Manhattan v Schaffer, 84 NY2d 148, 154-155 [1994], quoting Society ofPlastics Indus. v County of Suffolk, 77 NY2d 761, 772-773 [1991] [citations omitted])."Often informed by considerations of public policy, the standing analysis is, at its foundation,aimed at advancing the judiciary's self-imposed policy of restraint, which precludes the issuanceof advisory opinions" (Community Bd. 7 of Borough of Manhattan v Schaffer, 84NY2d at 155 [citations omitted and emphasis added]). "The courts of New York do not issueadvisory opinions for the fundamental reason that in this State 'the giving of such opinions is notthe exercise of the judicial function'. . . Thus, courts may not issue judicialdecisions which 'can have no immediate effect and may never resolve anything' "(Simon v Nortrax N.E., LLC, 44AD3d 1027 [2007], quoting New York Pub. Interest Research Group v Carey, 42NY2d 527, 531 [1977] [citation omitted and emphasis added]).
Here, the relief granted by the Supreme Court constituted an impermissible advisory opinion,as it will have no immediate effect and may never resolve any actual dispute or controversy(see New York Pub. Interest Research Group v Carey, 42 NY2d at 531; Simon vNortrax N.E., LLC, 44 AD3d at 1027). As such, rather than granting the relief, the SupremeCourt should have dismissed the complaint for lack of standing (see New York Pub. InterestResearch Group v Carey, 42 NY2d at 532). Fisher, J.P., Angiolillo, Balkin and Belen, JJ.,concur. [See 18 Misc 3d 531.]