           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

571
CA 13-01917
PRESENT: SMITH, J.P., PERADOTTO, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF JACK BAILEY, ET AL.,
PETITIONERS-PLAINTIFFS,
AND ANDREW DEWOLF,
PETITIONER-PLAINTIFF-APPELLANT,

                     V                            MEMORANDUM AND ORDER

VILLAGE OF LYONS BOARD OF TRUSTEES,
RESPONDENT-DEFENDANT-RESPONDENT.


ANDREW DEWOLF, PETITIONER-PLAINTIFF-APPELLANT PRO SE.

NESBITT & WILLIAMS, NEWARK (ARTHUR B. WILLIAMS OF COUNSEL), FOR
RESPONDENT-DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated decision) of the Supreme
Court, Wayne County (John B. Nesbitt, A.J.), entered August 27, 2013
in a CPLR article 78 proceeding and declaratory judgment action. The
judgment, among other things, granted the petition-complaint in part
by enjoining respondent-defendant to have a Board of Trustee’s
approved dissolution plan in place by October 20, 2013, failing which
the court would appoint a hearing officer to undertake that
responsibility.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: We dismiss the appeal as moot because, once the
dissolution plan at issue was adopted on September 30, 2013, no
justiciable controversy remained upon which a declaratory judgment
could be made or injunctive relief could be granted. “It is a
fundamental principle of our jurisprudence that the 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
NY2d 707, 713). This case does not fall within the exception to the
mootness doctrine (see id. at 714-715).




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
