Opinion
894 CA 19-02265
10-09-2020
In the Matter of Russell E. BROOKS, II, Petitioner-Appellant, v. Robert M. PALMIERI, Mayor of City of Utica, and City of Utica, Respondents-Respondents.
ROEMER WALLENS GOLD & MINEAUX LLP, ALBANY (BENJAMIN D. HEFFLEY OF COUNSEL), FOR PETITIONER-APPELLANT. WILLIAM M. BORRILL, CORPORATION COUNSEL, UTICA (ARMOND J. FESTINE OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
ROEMER WALLENS GOLD & MINEAUX LLP, ALBANY (BENJAMIN D. HEFFLEY OF COUNSEL), FOR PETITIONER-APPELLANT.
WILLIAM M. BORRILL, CORPORATION COUNSEL, UTICA (ARMOND J. FESTINE OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. Memorandum: Petitioner, a former fire chief for respondent City of Utica, commenced this proceeding pursuant to CPLR article 78 seeking, inter alia, to annul a determination denying his application for line-of-duty sick leave pursuant to General Municipal Law § 92-d. Respondents moved to dismiss the petition on the ground that, inter alia, the proceeding is moot. Petitioner now appeals from a judgment granting the motion on that ground.
General Municipal Law § 92-d provides for sick leave benefits to certain employees with qualifying World Trade Center conditions, as defined by section two of the Retirement and Social Security Law (see General Municipal Law § 92-d [1] ). After filing the petition in this case, however, petitioner reached the mandatory retirement age pursuant to Retirement and Social Security Law § 370 (b) and retired with the maximum amount of accrued sick leave. " ‘It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal’ " ( Hughes v. Gates , 217 A.D.2d 966, 967, 629 N.Y.S.2d 905 [4th Dept. 1995], quoting Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 713, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). Under the circumstances here, Supreme Court properly dismissed the petition as moot. This proceeding is "not of the class that should be preserved as an exception to the mootness doctrine" ( Hearst Corp. , 50 N.Y.2d at 715, 431 N.Y.S.2d 400, 409 N.E.2d 876 ).