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Action for a Declaratory Judgment Must Be Based Upon a Concrete Dispute, Not the Mere Possibility of Prejudice—Complaint Properly Dismissed

In finding that the action for a declaratory judgment was properly dismissed, the Second Department explained that a declaratory judgment must be based upon a concrete dispute and may not be based upon merely hypothetical prejudice to the plaintiff.  Without a concrete dispute, the action seeks an impermissible advisory opinion:

An action for a declaratory judgment must be supported by the existence of a justiciable controversy (see CPLR 3001…). There must be a genuine, concrete dispute between adverse parties, not merely the possibility of hypothetical, contingent, or remote prejudice to the plaintiff … .

Contrary to the plaintiff’s contention, it failed to allege the existence of a justiciable controversy in this case, relying instead upon a hypothetical injury which would be contingent upon the occurrence of events which may or may not come to pass at some point in the future. Accordingly, the plaintiff sought an impermissible advisory opinion, and the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a)(7) to dismiss the complaint … . Premier Restorations of N.Y. Corp. v New York State Dept. of Motor Vehicles, 2015 NY Slip Op 03339, 2nd Dept 4-22-15

 

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