Matter of Dor v. Tucker

Opinion

Matter of Dor v Tucker

2026 NY Slip Op 04767

July 29, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

In the Matter of Lubov Dor, appellant,

v

Janet Tucker, etc., et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 29, 2026

2025-00930, (Index No. 724223/23)

Cheryl E. Chambers, J.P.

Deborah A. Dowling

Lillian Wan

James P. McCormack, JJ.

Queens Legal Services, Jamaica, NY (Sarah Hainbach of counsel), for appellant.

David Nocenti, New York, NY (Daniel M. Braun of counsel), for respondent Janet Tucker.

Letitia James, Attorney General, New York, NY (Judith N. Vale and Gillian Barna of counsel), for respondent Cassandra Johnson.

[*1]

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondents to honor fee waiver certifications filed under CPLR 1101(e) and to immediately reinstate and process a certain petition for letters of administration filed by the petitioner with the Queens County Surrogate's Court on June 28, 2023, without requiring the payment of fees, the petitioner appeals from a judgment of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered December 26, 2024. The judgment denied, as academic, the petition and, in effect, dismissed the proceeding.

ORDERED that the judgment is affirmed, with one bill of costs.

On June 28, 2023, the petitioner electronically filed through the New York State Courts Electronic Filing System a petition to obtain letters of administration for the estate of Michael Woods, her deceased husband. In conjunction therewith, the petitioner's counsel from Queens Legal Services electronically filed a fee waiver certification under CPLR 1101(e). Subsequently, on October 4, 2023, the Surrogate's Court notified the petitioner's counsel that the file had been deleted from its records because a filing fee was required.

On November 15, 2023, the petitioner commenced this proceeding pursuant to CPLR article 78 against the Chief Clerk of the Queens County Surrogate's Court and the Surrogate for Queens County (hereinafter the Surrogate) in the nature of mandamus to compel them to honor fee waiver certifications filed under CPLR 1101(e) and to immediately reinstate and process the petition for letters of administration filed by the petitioner on June 28, 2023, without requiring the payment of fees. Subsequently, the petitioner re-filed her petition for letters of administration, along with the fee waiver certification under CPLR 1101(e), the case was given a file number, and, by order of the Surrogate dated February 23, 2024, all fees and costs related to the filing and processing of that proceeding were waived. Resultantly, in a judgment entered December 26, 2024, the Supreme Court denied, as academic, the petition and, in effect, dismissed the proceeding. The petitioner appeals.

It is well settled "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" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713; see Matter of Santman v Satterthwaite, 238 AD3d 1156, 1157-1158; Matter of Weinman v New York State Dept. of Motor Vehs. Traffic Violations Bur., 203 AD3d 1050, 1051). Accordingly, courts are precluded from considering questions that, although once live, have become moot by passage of time or change in circumstances (see Matter of Hearst Corp. v Clyne, 50 NY3d at 714; Matter of Weinman v New York State Dept. of Motor Vehs. Traffic Violations Bur., 203 AD3d at 1051).

Here, the Supreme Court properly concluded that the petition has been rendered academic (see Matter of Strong v Appellate Term of the Supreme Ct. of the State of N.Y. 9th & 10th Dists., 229 AD3d 794, 794; Nasca v Manion, 219 AD3d 1436, 1437; Matter of Weinman v New York State Dept. of Motor Vehs. Traffic Violations Bur., 203 AD3d at 1051-1052). Contrary to the petitioner's contention, the exception to the mootness doctrine does not apply. The petitioner failed to show, and the record does not demonstrate, that the issues raised in this appeal are likely to repeat, either between the parties or among other members of the public, to evade judicial review, or are substantial and novel (see Matter of Hearst Corp. v Clyne, 50 NY2d at 714-715).

Contrary to the petitioner's further contention, the fact that the Surrogate, in the order providing for the waiver of all fees and costs related to the filing and processing of the petition for letters of administration, made the additional and further discretionary determination to limit any letters of administration issued therein to the collection of $50,000, does not entitle her to the requested mandamus relief (see New York Civ. Liberties Union v State of New York, 4 NY3d 175, 184; Klostermann v Cuomo, 61 NY2d 525, 540). To the extent the petitioner contends that the Surrogate, in the underlying proceeding, abused its discretion in making that determination, such contention is not properly before this Court on appeal from the judgment herein.

CHAMBERS, J.P., DOWLING, WAN and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court