Calendar Date: February 14, 2017
Wallens Gold & Mineaux, Albany (Matthew J. Kelly of
counsel), for appellants.
Christopher H. Gardner, County Attorney, Schenectady (Frank
S. Salamone of counsel), for respondents.
Before: Garry, J.P., Egan Jr., Rose, Devine and Aarons, JJ.
MEMORANDUM AND ORDER
(1) from a judgment of the Supreme Court (Reilly Jr., J.),
entered October 28, 2015 in Schenectady County, which
dismissed petitioners' application, in a proceeding
pursuant to CPLR article 78, to review a determination of
respondents denying petitioners' application for a mass
gathering permit, and (2) from an order of said court,
entered February 8, 2015 in Schenectady County, which denied
petitioners' motion to renew and reargue.
January 2015, petitioner Lunar Pursuit, LLC submitted an
application to respondent John J. Frame, the Director of
respondent Schenectady County Public Health Services
Environmental Health Unit and an officer of respondent County
of Schenectady, for a mass gathering permit to hold a music
festival called Camp Bisco in July 2015 on the premises of
petitioner Indian Lookout Country Club, Inc. in Schenectady
County. In April 2015, respondents denied the application on
multiple grounds, including Lunar Pursuit's failure to
provide adequate transportation and emergency operations
plans, demonstrate that it had the financial resources to
execute the submitted plans, procure an adequate amount of
liability insurance, and provide an adequate plan to prevent
the use of dangerous drugs during the festival. Petitioners
commenced this CPLR article 78 proceeding seeking to annul
respondents' determination. Respondents opposed the
petition, and, in October 2015, Supreme Court found that
respondents had a rational basis to deny the permit and
dismissed the petition. Petitioners moved to renew and
reargue, which respondents opposed and the court denied.
Petitioners appeal from the judgment dismissing the petition
and the order denying the motion.
record reveals that, in July 2015, the Camp Bisco music
festival that petitioners had hoped to hold in Schenectady
County took place in Pennsylvania. As a result, no
"actual controversy" remains to be decided as to
the 2015 application (Matter of Citineighbors Coalition
of Historic Carnegie Hill v New York City Landmarks Preserv.
Commn., 2 N.Y.3d 727, 728-729  [internal quotation
marks and citation omitted]). Further, the State Sanitary
Code requires any party seeking a permit for a mass gathering
to file a new application for each event, and nothing in the
pertinent regulations suggests that approval or denial of an
application has any effect on the likelihood of approval of
subsequent applications (see 10 NYCRR 7-4.2 [c];
see generally 10 NYCRR subpart 7-4). Thus, a
determination as to whether the 2015 application should have
been granted "would not directly affect petitioners'
future similar applications and cannot undo any harm already
sustained by the denial" (Matter of Cornelius v City
of Oneonta, 71 A.D.3d 1282, 1285  [internal
quotation marks, brackets, footnote and citation omitted]).
Accordingly, the matter is moot (see Matter of
Gold-Greenberger v Human Resources Admin. of City of
N.Y., 77 N.Y.2d 973, 974 ; Matter of Bouck v
New York State Off. of Temporary & Disability
Assistance, 134 A.D.3d 1316, 1317 ).
exception to the mootness doctrine permits judicial review of
novel or substantial issues that are otherwise moot, but are
likely to recur and capable of evading review (see Matter
of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714-715 ;
Matter of Schermerhorn v Becker, 64 A.D.3d 843, 845
). Although some of the issues presented here may recur
if petitioners file another application in the future, the
State Sanitary Code requires each application for a mass
gathering permit to be accompanied by "plans, reports
and specifications" providing for such matters as food
and water supplies, sanitary facilities, medical care, fire
protection "and such other matters as may be appropriate
for security of life or health" (10 NYCRR 7-4.2 [b]). It
would be speculative to assume that such a particularized
application for a future event taking place under different
circumstances would include the same plans that respondents
rejected in 2015. Further, we are not persuaded that such a
future application would be "sufficiently evanescent to
evade review" (Matter of Citineighbors Coalition of
Historic Carnegie Hill v New York City Landmarks Preserv.
Commn., 2 N.Y.3d at 729). The only time constraint that
the State Sanitary Code imposes upon mass gathering permit
applications is a requirement that they must be submitted
"at least 15 days before the first day of advertising
and at least 45 days before the first day of the
gathering" (10 NYCRR 7-4.2 [b]). We have duly considered
petitioners' argument that we consider this matter in
light of the underlying business realities. Ultimately,
however, given this broad time frame, nothing in the
submissions reveals any obstacle that would prevent
petitioners from making a future application in advance so as
to allow timely review through a CPLR article 78 proceeding
(see Matter of Cornelius v City of Oneonta, 71
A.D.3d at 1285). Finally, we find nothing "substantial
and novel" in the highly fact-specific issues presented
here (Matter of Hearst Corp. v Clyne, 50 N.Y.2d at
715). Thus, the exception to the mootness doctrine does not
apply (see Matter of Gold-Greenberger v Human Resources
Admin. of City of N.Y., 77 N.Y.2d at 974-975; Matter
of Cornelius v City of Oneonta, 71 A.D.3d at 1284-1285;
Shelton v New York State Liq. Auth., 61 A.D.3d 1145,
1147-1148 ). Petitioners' appeal from the denial of
their motion for renewal and reargument is likewise moot.
Jr., Rose, Devine and Aarons, JJ., concur.
that the appeals are dismissed, ...