In the Matter of TIMOTHY C. TRUSCOTT et al., Appellants,
CITY OF ALBANY BOARD OF ZONING APPEALS et al., Respondents.
Calendar Date: June 9, 2017
Law Office, Albany (Lewis B. Oliver Jr. of counsel), for
William G. Kelly Jr., Interim Corporation Counsel, Albany
(Valerie A. Lubanko of counsel), for respondents.
Before: McCarthy, J.P., Garry, Egan Jr., Devine and Clark,
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Hartman, J.), entered
March 3, 2016 in Albany County, which dismissed
petitioners' application, in a proceeding pursuant to
CPLR article 78, to review a determination of respondent City
of Albany Board of Zoning Appeals denying petitioners'
request for, among other things, an area variance.
own real property in the City of Albany that includes a
residence and a backyard storage shed. This shed deteriorated
over time, and, in 2013, petitioner Timothy C. Truscott
obtained a building permit to repair two of the shed's
four walls. Due to an alleged miscommunication with his
contractor, however, all four walls were torn down, and the
structure was replaced in its entirety. As a result,
respondent Department of Buildings and Regulatory Compliance
of the City of Albany issued a stop work order, and
Truscott's subsequent application for a new building
permit was denied because the rebuilt shed failed to comply
with the applicable setback requirements. Truscott
unsuccessfully sought an area variance from respondent City
of Albany Board of Zoning Appeals and then commenced this
CPLR article 78 proceeding seeking review of the
determination of the Board of Zoning Appeals. Supreme Court
denied the petition, and petitioners now appeal.
the appeal was perfected, the City adopted a new zoning
ordinance that eliminated the applicable setback requirements
for petitioners' shed . At both oral argument and in a
postargument submission, respondents contend that the
enactment of the new zoning ordinance has rendered this
appeal moot. Respondents are no longer seeking the
demolishment or removal of petitioners' shed. They
concede that, under the new ordinance, petitioners' shed
is now a conforming structure and that an area variance is no
longer required (see Code of City of Albany §
375-4 [A]  [iv] [B]).
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
N.Y.2d 707, 713 ; accord Matter of Kagan v New York
State Dept. of Corr. & Community Supervision, 117
A.D.3d 1215, 1216 ). "In general[, ] 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" (Matter of Hearst Corp. v Clyne,
50 N.Y.2d at 714; see Matter of Ballard v New York Safety
Track LLC, 126 A.D.3d 1073, 1075 ; Matter of
Lilly Pad, LLC v Zoning Bd. of Appeals of Vil. of E.
Hampton, 120 A.D.3d 686, 687 ). If, as here,
"a change in circumstances prevents a court from
rendering a decision that would effectively determine an
actual controversy, [then] the claim must be dismissed"
(Matter of Ballard v New York Safety Track LLC, 126
A.D.3d at 1075 [internal quotation marks and citation
omitted]; see Matter of Hearst Corp. v Clyne, 50
N.Y.2d at 713-714; Matter of Czajka v Dellehunt, 125
A.D.3d 1177, 1180 ). Inasmuch as petitioners'
rights are no longer "actually controverted" and a
determination of their appeal would not affect the rights of
the parties, the appeal must be dismissed as moot (Matter
of Hearst Corp. v Clyne, 50 N.Y.2d at 713; see
Cornell Univ. v Bagnardi, 68 N.Y.2d 583, 592 ;
Matter of Spaziani v City of Oneonta, 302 A.D.2d
846, 847 ; Matter of Freihofer v Lake George Town
Bd., 147 A.D.2d 865, 867-868 ). Petitioners'
contention that a live controversy remains because a related
code enforcement proceeding still remains pending against
them is unavailing. Simply put, that separate and distinct
proceeding is not before us on this appeal and does not
affect our mootness finding.
McCarthy, J.P., Garry, Egan Jr. and Devine, JJ., concur.
that the appeal is dismissed, as moot, without costs.
 Although the newly adopted zoning
ordinance is not included in the record on appeal, we take
judicial notice of it (see CPLR 4511 [a]; St.
David's Anglican Catholic Church, Inc. v Town of