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THE APPEAL WAS MOOT BECAUSE THE PETITION SOUGHT TO HALT THE CONSTRUCTION OF A MINING SHAFT APPROVED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE SHAFT HAD BEEN COMPLETED AT THE TIME OF THE APPEAL (THIRD DEPT).

The Third Department determined the appeal was moot because the action sought to halt the construction of a mining shaft approved by the Department of Environmental Conservation (DEC) but the shaft had already been constructed at the time of the appeal:

“[T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” … . Whether the controversy has become moot requires the consideration of various factors, including how far the construction work has progressed towards completion, whether the work was undertaken in bad faith or without authority and whether the substantially completed work cannot be readily undone without substantial hardship … . A chief consideration to be assessed is whether the challenger to the construction work “fail[ed] to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” … .

This Court has been advised that, during the pendency of the underlying proceeding and this appeal, the construction of the surface shaft has been completed to the point that it cannot be safely halted and that substantial construction costs have been incurred. Furthermore, there is no indication that petitioners promptly sought injunctive relief to maintain the status quo … or that [respondent] proceeded with the construction in bad faith or without the authority to do so … . Based on the foregoing, petitioners’ appeal is moot … . Matter of City of Ithaca v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 06322, Third Dept 11-5-20

 

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