The opinion of the court was delivered by: Stein, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Calendar Date: February 19, 2009
Before: Cardona, P.J., Peters, Malone Jr. and Stein, JJ.
Appeals (1) from an order of the Supreme Court (Egan Jr., J.), entered November 2, 2007 in Albany County, which, among other things, partially granted defendants' motion to dismiss the complaint in action No. 1, (2) from an order and an amended order of said court, entered January 11, 2008 in Albany County, which denied plaintiff's motion for, among other things, leave to amend the complaint in action No. 1, and (3) from an order of the Court of Claims (McCarthy, J.), entered June 12, 2008, which granted defendant's motion to dismiss the claim in action No. 2.
Plaintiff/claimant, Daniel Shelton (hereinafter plaintiff), is a Massachusetts resident in the business of marketing and distributing beer throughout the United States. The actions underlying this appeal arose out of plaintiff's efforts to register the brand labels of six beers for sale within New York with defendant New York State Liquor Authority (hereinafter the Authority) as required by the Alcoholic Beverage Control Law (see Alcoholic Beverage Control Law § 107-a). In plaintiff's words, the subject beer labels make "comic and irreverent references to Christmas themes."
Plaintiff's applications to register the six labels were submitted on October 3, 2006. Thirty-one days later, an employee of the Authority allegedly called plaintiff and informed him that the applications had been denied. Although no written denial had been issued,*fn1 plaintiff commenced action No. 1 in Supreme Court on November 21, 2006 seeking to enjoin the Authority from prohibiting the sale of the subject beers in New York and alleging various state and federal constitutional and statutory violations by the Authority and its three Commissioners, the individual defendants named in action No. 1. By letter dated November 28, 2006, the Authority officially approved the labels of the subject beers. Nevertheless, plaintiff commenced action No. 2 in the Court of Claims, also seeking damages for alleged constitutional violations stemming from the denial of his applications.
In action No. 1, the Authority and its Commissioners (hereinafter collectively referred to as defendants) moved to dismiss plaintiff's amended and second amended complaint*fn2. Plaintiff opposed the motion and cross-moved for leave to amend the complaint a third time to add as defendants the Department of Taxation and Finance and its acting Commissioner. In a November 2007 order, Supreme Court partially granted defendants' motion by dismissing the first eight causes of action as moot and the 11th cause of action for failure to state a cause of action and lack of subject matter jurisdiction. The court also partially granted plaintiff's cross motion, permitting modification of the complaint only with respect to the remaining two causes of action*fn3. Plaintiff then unsuccessfully moved for reargument on the dismissal of his 11th cause of action for failure to state a claim under 42 USC § 1983 or, alternatively, leave to again amend the complaint so as to specifically allege sufficient involvement of the individual defendants to sustain his 42 USC § 1983 cause of action. In action No. 2, the Court of Claims granted defendant State of New York's motion to dismiss plaintiff's claim for want of subject matter jurisdiction.
Plaintiff appeals from Supreme Court's November 2007 order dismissing nine of his causes of action, that court's January 2008 order denying his motion to amend his complaint with respect to his 11th cause of action, and the Court of Claims' order dismissing his claim in action No. 2. We consolidated the appeals and now modify the orders in action No. 1.
First addressing action No. 1, we find that plaintiff's first eight causes of action were properly dismissed. The Authority's ultimate approval of the labels rendered moot plaintiff's claims based upon the denial of his applications and, contrary to plaintiff's argument on appeal, the exception to the mootness doctrine has not been demonstrated. The exception may only be found when all of the following three factors are present: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 ). Here, plaintiff has failed to demonstrate that either the first or second factor is present.
The unique factual underpinnings that render plaintiff's first eight causes of action moot are not likely to recur. The Authority ultimately approved the applications; thus, plaintiff's claimed injury stems solely from the alleged verbal communication denying the applications and plaintiff's subsequent reliance on that information. Accordingly, the emphasis that plaintiff places on the fact that defendants have denied applications in the past based on similar and, according to plaintiff, illegal criteria, is misplaced. A future denial of plaintiff's applications could certainly happen but, unlike here, a denial would present an actionable controversy.
Indeed, for this scenario to repeat itself, defendants would have to verbally communicate the Authority's position on pending applications and plaintiff would, once again, have to rely on that information, as opposed to seeking a written decision. Even in this case, because the Authority did not issue a written denial within 30 days of plaintiff's application, plaintiff's labels were deemed approved as early as November 3, 2006, the 31st day after plaintiff's October 3, 2006 application was submitted. Armed with this information, we find it dubious that plaintiff would allow himself to be misguided by an oral communication in the future.
Further, we cannot agree with plaintiff that, should this situation repeat itself, it would continue to evade review. Plaintiff argues that defendants have the unfettered ability to delay approval during a critical marketing period here the months immediately preceding Christmas and then approve the labels at the onset of litigation, thereby continually evading review. However, given the Alcoholic Beverage Control Law's express statutory protection against undue delay by the Authority, discussed above, we find plaintiff's concerns to be unfounded (see Alcoholic Beverage Control Law § 107-a  [c] ). Plaintiff may seek approval from the Authority well in advance of his targeted marketing season,*fn4 and he will be guaranteed a decision within 30 days. If a written denial is issued, it could be immediately challenged. If no written decision is forthcoming, plaintiff could proceed with the knowledge that his application has been deemed approved (see Alcoholic Beverage Control Law § 107-a  [c] ). Accordingly, the exception to the mootness doctrine is not applicable ...