People ex rel. Elitcher v. Kelly

13 A.D.3d 149, 785 N.Y.S.2d 695, 2004 N.Y. App. Div. LEXIS 15059

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 2004
• Status: Published

Opinion

Appeals from (1) judgment (402759/04), Supreme Court, New York County (John Cataldo, J.), entered September 1, 2004, which granted the petition for a writ of habeas corpus, to the extent of directing the arraignment or release of certain detainees by 1:00 a.m. on September 2, 2004; and (2) judgment (112673/04), same court and Justice, entered September 2, 2004, which granted a second petition for a writ of habeas corpus, to the extent of directing the arraignment or release of certain other detainees upon a schedule set by the court, unanimously dismissed as moot, without costs.

All detainees have been released and the instant appeal, which cannot affect the rights of the parties, is moot (see People ex rel. Barna v Malcolm, 85 AD2d 313, 315 [1982]). Given the unique factual circumstances presented, this appeal does not present an important issue likely to recur and evade review (compare People ex rel. Maxian v Brown, 77 NY2d 422, 425 [1991]). Nor does the pending contempt hearing negate the mootness of the instant appeal, since a lawful order of the court, clearly expressed and unequivocal, must be obeyed, even if the order is later found to be invalid (see Matter of Dept. of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 240 [1987]; Sigmoil Resources N.V. v Fabbri, 228 AD2d 335 [1996]; Wiebusch v Hayes, 263 AD2d 389, 391 [1999]). Concur—Buckley, P.J., Andrias, Sullivan, Ellerin and Williams, JJ.