De Luca v. Johnson

Appellate Division of the Supreme Court of New York

De Luca v. Johnson

284 A.D. 824, 132 N.Y.S.2d 442, 1954 N.Y. App. Div. LEXIS 3566

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 8, 1954

StatusPublished

This text of 284 A.D. 824 (De Luca v. Johnson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

De Luca v. Johnson, 284 A.D. 824, 132 N.Y.S.2d 442, 1954 N.Y. App. Div. LEXIS 3566 (N.Y. Ct. App. 1954).

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Opinion

Appeal from an order of the Supreme Court, Albany County Special Term. The petitioner sought an order pursuant to article 78 of the Civil Practice Act declaring a State Police promotional examination held December 18, 1951, and the list resulting therefrom to be void, and directing respondent to discontinue certain alleged unlawful practices. The Special Term denied the motion and dismissed the proceeding on the ground that the issues were academic and moot, because it appeared that the promotional list involved expired on January 15, 1954, and no appointment had been made therefrom. We think the position was sound. This proceeding is not in the category of those rare exceptions where a moot issue will arise because of public policy and because of certainty that the same issu.e will arise in the future. There is nothing in the record to indicate that there will be a new examination upon the same terms and conditions as the one we formerly reviewed, and in connection with which we permitted the service of an amended petition. If that occurs, petitioner’s remedy is a new proceeding. Order unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpem and Imrie, JJ. [See Matter of De Luca v. Gaffney, 282 App. Div. 607.] [See post, p. 856.]

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Appeal from an order of the Supreme Court, Albany County Special Term. The petitioner sought an order pursuant to article 78 of the Civil Practice Act declaring a State Police promotional examination held December 18, 1951, and the list resulting therefrom to be void, and directing respondent to discontinue certain alleged unlawful practices. The Special Term denied the motion and dismissed the proceeding on the ground that the issues were academic and moot, because it appeared that the promotional list involved expired on January 15, 1954, and no appointment had been made therefrom. We think the position was sound. This proceeding is not in the category of those rare exceptions where a moot issue will arise because of public policy and because of certainty that the same issu.e will arise in the future. There is nothing in the record to indicate that there will be a new examination upon the same terms and conditions as the one we formerly reviewed, and in connection with which we permitted the service of an amended petition. If that occurs, petitioner’s remedy is a new proceeding. Order unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpem and Imrie, JJ. [See Matter of De Luca v. Gaffney, 282 App. Div. 607.] [See post, p. 856.]

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284 A.D. 824, 132 N.Y.S.2d 442, 1954 N.Y. App. Div. LEXIS 3566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-luca-v-johnson-nyappdiv-1954.

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