| Matter of Enlarged City School Dist. of Middletown v City ofMiddletown |
| 2012 NY Slip Op 04746 [96 AD3d 840] |
| June 13, 2012 |
| Appellate Division, Second Department |
| In the Matter of Enlarged City School District of Middletown,Respondent, v City of Middletown et al., Appellants. |
—[*1] Bond, Schoeneck & King, PLLC, Rochester, N.Y. (Edward P. Hourihan, Jr., and Joseph S.Nacca of counsel), for respondent. John A. Mancini, Albany, N.Y., for amicus curiae New York State Conference of Mayorsand Municipal Officials and Michael E. Kenneally, Albany, N.Y., for amicus curiae Associationof Towns of the State of New York (one brief filed). Jay Worona and Kimberly A. Fanniff, Latham, N.Y., for amicus curiae New York StateSchool Boards Association, Inc. (one brief filed).
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of theCommissioner of Public Works of the City of Middletown dated March 26, 2010, purportedlydeclining to review the petitioner/plaintiff's application for approval to connect a building to thesewer system of the City of Middletown unless and until the petitioner/plaintiff paid for thereconstruction, repair, or replacement of a certain existing sewer line owned and operated by theCity of Middletown, and action for a judgment declaring, among other things, that a city may notrequire a city school district to pay for the reconstruction, repair, or replacement of an existingcity sewer line as a precondition to the consideration and review of any application by the schooldistrict for a permit connecting a school district's new building to that sewer line, therespondents/defendants appeal from an order and judgment (one paper) of the Supreme Court,Orange County (Lubell, J.), dated January 26, 2011, which, in effect, granted the petition,annulled the determination, granted the petitioner/plaintiff's motion for summary judgmentdeclaring, inter alia, that a city may not require a school district to pay for the reconstruction,repair, or replacement of an existing city sewer line as a precondition to the consideration andreview of any application by a city school district for a permit to connect its new building to thatsewer line, and, in effect, denied the respondents/defendants' application to dismiss the complaintas premature.
Ordered that the order and judgment is reversed, on the law, with costs, the petition is denied,the proceeding is dismissed, the petitioner/plaintiff's motion is denied, therespondents/defendants' application is granted, and the complaint is dismissed as premature.[*2]
The Supreme Court "may render a declaratory judgmenthaving the effect of a final judgment as to the rights and other legal relations of the parties to ajusticiable controversy whether or not further relief is or could be claimed" (CPLR 3001).However, New York courts do not issue advisory opinions (see e.g. Cuomo v Long Is. Light.Co., 71 NY2d 349, 354 [1988]). Thus, a declaratory judgment should only be granted whenit will have a direct and immediate effect upon the rights of the parties (see Koehler v Townof Smithtown, 305 AD2d 550, 551 [2003]; Matter of United Water New Rochelle v Cityof New York, 275 AD2d 464, 466 [2000]; cf. Hussein v State of New York, 81 AD3d 132, 135 [2011];Rockland County Multiple Listing Sys. v State of New York, 72 AD2d 742 [1979]). "Thedoctrine of exhaustion of administrative remedies applies to actions for declaratory judgments,"although there are exceptions available where, inter alia, "resort to administrative remedieswould be futile or would cause irreparable injury" (Town of Oyster Bay v Kirkland, 81 AD3d 812, 815 [2011], lvgranted 17 NY3d 716 [2011]; see Watergate II Apts. v Buffalo Sewer Auth., 46NY2d 52, 57 [1978]; Slater v Gallman, 38 NY2d 1, 3-4 [1975]). In order to be amenableto declaratory relief, "[t]he dispute must be real, definite, substantial, and sufficiently matured soas to be ripe for judicial determination" (Waterways Dev. Corp. v Lavalle, 28 AD3d 539, 540 [2006]; see Ashley Bldrs. Corp. v Town ofBrookhaven, 39 AD3d 442 [2007]; Bauer v Roman Catholic Diocese of Albany,91 AD2d 730 [1982]). Consequently, the request for a declaratory judgment is premature "if thefuture event is beyond the control of the parties and may never occur" (New York Pub.Interest Research Group v Carey, 42 NY2d 527, 531 [1977]; see American Ins. Assn. vChu, 64 NY2d 379, 385 [1985], cert denied 474 US 803 [1985]; Capital Dist. Enters., LLC v Windsor Dev.of Albany, Inc., 53 AD3d 767 [2008]; Tucci v Talon Seafood S., Inc., 27 AD3d 642, 644 [2006]; Kings Park Indus., Inc. v AffiliatedAgency, Inc., 22 AD3d 466, 467 [2005]). The threat of a hypothetical, contingent, orremote prejudice to a party does not represent a justiciable controversy (see Ashley Bldrs. Corp. v Town ofBrookhaven, 39 AD3d 442 [2007]; Waterways Dev. Corp. v Lavalle, 28 AD3dat 540; Fragoso v Romano, 268 AD2d 457 [2000]).
Here, the record reveals that the petitioner/plaintiff (hereinafter the petitioner) commencedthe instant hybrid proceeding and action in the midst of discussions with therespondents/defendants (hereinafter the appellants) regarding the petitioner's application for awater and sewer permit to service the new building it planned to construct. However, there is noevidence that the appellants ever refused to review the petitioner's permit application or asserteda formal set of conditions that the petitioner had to meet before the permit application would bereviewed. Moreover, there was no denial of the permit application, and the permit was not issuedsubject to any set of conditions. Rather, the evidence showed that the Commissioner of PublicWorks of the City of Middletown, who was responsible for reviewing the application and issuingthe permit (see Code of City of Middletown § 389-1 [A]), did not receive theproperly stamped plans from the petitioner, which were necessary to review the permitapplication, until the same day that the instant proceeding/action was commenced. Thus, theunderlying dispute concerning the extent of the City's authority is not ripe for judicial review, andthere is no justiciable controversy upon which the court may properly render a declaratoryjudgment (see Matter of Town ofRiverhead v Central Pine Barrens Joint Planning & Policy Commn., 71 AD3d 679,680-681 [2010]; Ashley Bldrs. Corp. vTown of Brookhaven, 39 AD3d 442 [2007]; Waterways Dev. Corp. v Lavalle,28 AD3d at 540; Fragoso v Romano, 268 AD2d 457 [2000]).
Since there is no evidence that the appellants refused to review the petitioner's permitapplication, the petition seeking relief pursuant to CPLR article 78 must be denied.
In light of our determination, the appellants' remaining contentions have been renderedacademic. Dillon, J.P., Dickerson, Hall and Sgroi, JJ., concur.