The opinion of the court was delivered by: Graffeo, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
We conclude that the Appellate Division did not abuse its discretion in affirming a Supreme Court order granting class action certification under CPLR article 9 to plaintiffs, a group of developmentally disabled children and young adults who are or have been in New York City's foster care system. We therefore affirm the Appellate Division order.
This appeal concerns the alleged failures of the New York City Administration for Children's Services (ACS) and the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD) to fulfill their statutory and regulatory duties with respect to certain children in ACS's foster care system. ACS is a municipal agency that provides foster care placements and services to thousands of children in a broad array of settings. It is statutorily required to undertake permanency planning and ensure appropriate placements for each of these children, including those with developmental disabilities (see Social Services Law § 398).*fn1 OMRDD is a state agency responsible for "the development of comprehensive plans, programs, and services" for "persons with mental retardation and developmental disabilities" (Mental Hygiene Law § 13.07 [a]).
The City of New York, by ACS's Commissioner, originally commenced this action in 2004 on behalf of seven children in foster care against the Commissioner of OMRDD, alleging that OMRDD failed to properly place, treat or care for developmentally disabled children who were properly referred by ACS. The complaint seeks declaratory relief with respect to the subject children as well as for "all other mentally retarded and/or developmentally disabled persons properly referred by [ACS]." In its complaint, the City further asserts that OMRDD improperly refused to provide nonresidential services to foster children even though it provides such services to similarly-situated children who are not in the foster care system.*fn2
In 2006, the scope of this litigation expanded when Supreme Court granted intervenor status to 11 additional plaintiffs. Each intervenor/plaintiff is developmentally disabled and is, or was a child in ACS's care, custody or guardianship. Plaintiffs' amended complaint sets forth six causes of action against ACS and OMRDD and seeks declaratory and injunctive relief based on both agencies' alleged violations of state and federal statutes and regulations.*fn3
In general, plaintiffs claim that ACS and OMRDD failed to place them in the least restrictive settings that were appropriate for their needs. More particularly, plaintiffs contend that ACS lacks a consistent plan for identifying children who are in need of OMRDD's services and that ACS fails to adequately train its case workers to evaluate developmental disabilities. They allege that, when the need for OMRDD's services arises in a particular case, ACS fails to make necessary referrals to OMRDD or waits an inordinate amount of time before doing so, all to the detriment of the children requiring special services. Even when children are referred to OMRDD, plaintiffs claim that referral packets prepared by ACS are often incomplete, resulting in rejections by OMRDD of otherwise eligible children, causing additional delays in appropriate services. Finally, plaintiffs argue that these failures are especially harmful to older adolescents who are close to "aging out" of the foster care system because delayed referrals to OMRDD make it more difficult for that agency to find appropriate permanent placements for them.
As a result, plaintiffs submit that ACS practices allow developmentally disabled children to age out of the foster care system without adequate permanency planning. This is apparent in the profile of the plaintiffs -- all but one of the young people were either approaching 21 years of age or were 21 or older when the complaint was filed.*fn4 Similarly, 10 of the plaintiffs allege that ACS's referral delays impeded their placements and receipt of services from OMRDD.
Regarding OMRDD, plaintiffs echo the City's allegations in the original complaint, including that OMRDD improperly refuses to provide nonresidential services to children in the care, custody or guardianship of ACS, even though it provides similar services to children outside the foster care system. They also claim that OMRDD categorically declines referrals from ACS unless a child's stated permanency planning goal is adult residential placement, and that OMRDD's waiting periods for appropriate placements are unreasonably long, sometimes lasting nine years. These delays necessarily have a detrimental impact because, while awaiting placement by OMRDD, ACS temporarily places some children and adolescents in unduly restrictive settings that are inappropriate to their needs.
Plaintiffs represent that there are at least 150 youngsters with developmental disabilities who are similarly injured by ACS's and OMRDD's failures to provide services that they are entitled to by law. Consequently, plaintiffs moved in Supreme Court for class certification. ACS opposed the motion and cross-moved for partial summary judgment dismissing plaintiffs' prospective claims as moot on the basis that eight plaintiffs had since been placed in appropriate OMRDD facilities and that the remaining three had been approved by OMRDD and were awaiting vacancies.
Supreme Court denied ACS's motion, granted plaintiffs' request and certified the class as follows:
"Individuals with developmental disabilities who are in or have been in New York City Administration for Child[ren's] Services' (ACS's) care or custody and who, during their time in ACS's care or custody, have not received or did not receive services from ACS and the New York Office of Mental Retardation and Developmental Disabilities to which they were or are entitled."*fn5 The Appellate Division, with one Justice dissenting, affirmed (59 AD3d 187 [1st Dept 2009]).*fn6 The Court held that plaintiffs' prospective claims could be addressed under an exception to the mootness doctrine and that plaintiffs had satisfied the requirements of CPLR article 9, warranting class certification. The Appellate Division subsequently granted leave to appeal to this Court and certified the following question: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"
At the outset, ACS submits that its motion for partial summary judgment should have been granted because plaintiffs' claims for declaratory and injunctive relief are now moot. We disagree.
As a general principle, courts are precluded "from considering questions which, although once live, have become moot by passage of time or change in circumstances" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 ). Typically, "an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" (id.). Nevertheless, we have consistently applied an exception to the mootness doctrine, permitting judicial review, where the issues are substantial or novel, likely to recur and capable of evading review (see id. at 715; see also Matter of M.B., 6 NY3d 437, 447 ; Mental Hygiene Legal Servs. v Ford, 92 NY2d 500, 506 ).
Here, ACS represents that since the time the complaint was filed, at least eight plaintiffs are now receiving services at suitable OMRDD facilities, and the other plaintiffs have been approved and are awaiting OMRDD placements. Even assuming that the claims of these plaintiffs pertaining to the waiting list are moot, we concur with the Appellate Division that an exception to mootness should be applied in this case. Plaintiffs raise substantial and novel questions as to whether ACS and OMRDD are fulfilling their statutory responsibilities. These issues are likely to recur and may evade review given the temporary duration of foster care, the aging out of potential plaintiffs and the fact that some placements tend to be transitory (see Matter of Savastano v Prevost, 66 NY2d 47, 48 n , rearg denied 66 NY2d 1036  ["While all 25 patients who are the subject of the petition have by now been transferred to an OMRDD facility, we retain jurisdiction because of the substantial issues raised, the likelihood of repetition, and the fact that these issues may otherwise evade review"]). Concluding that the mootness exception is applicable, we next turn to the class certification issue.
ACS, supported by amicus New York State Association of Counties, contends that the courts below abused their discretion in allowing this case to proceed as a class action. In particular, ACS asserts that, contrary to the conclusions of Supreme Court and the Appellate Division, plaintiffs have failed to demonstrate, as required by CPLR 901 (a) (2), that common questions of fact or law predominate over issues that are specific to individual class members. ACS suggests that plaintiffs are seeking to litigate a claim of "systematic failure," a concept too broad to comply with the commonality prerequisite of CPLR 901 (a) (2). Plaintiffs, joined by various amici, including the Legal Aid Society of New York and Advocates ...