|Cohen v New York State Legislative Task Force on Demographic Research & Reapportionment|
|2012 NY Slip Op 22059|
|Decided on March 9, 2012|
|Supreme Court, New York County|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and subject to revision before publication in the printed Official Reports.|
Daniel Marks Cohen, RAQUEL BATISTA, PURVA BEDI, TODD BREITBART, RAYMOND W. ENGEL, JACQUELINE G. FORRESTAL, PATRICK L. FURLONG, ANDREW KULYK JERRY C. LEE, IRENE VAN SLYKE, and SENATOR MARTIN MALAVÉ DILAN, Plaintiffs/, Petitioners,
The New York State Legislative Task Force on Demographic Research and Reapportionment; SENATOR MICHAEL F. NOZZOLIO; and ASSEMBLYMAN JOHN J. McENENY, Defendants/, Respondents.
Attorneys for plaintiffs/petitioners: Cuti Hecker Wang LLP, by: Eric Hecker, Esq., John R. Cuti, Esq., Alexander Goldenberg, Esq., and Julie B. Ehrlich, Esq., 305 Broadway, Suite 607, New York, New York, (212) 620-2600
Attorneys for defendant/respondent Senator Michael F. Nozzolio: Lewis & Fiore, by: David L. Lewis, Esq., 222 East 41st Street, New York, New York 10017-6702, (212) 285-2290, and Jones Day, by: Todd R. Geremia, 222 East 41st Street, New York, New York 10017-6702, (212) 326-3939, and Jones Day, by: Michael A. Carvin, Esq., and John M. Gore, Esq., 51 Louisiana Avenue, N.W., Washington D.C. 20001, (202) 879-3930
Attorneys for defendant/respondent Assemblyman John J. McEneny: Graubard Miller, by: C. Daniel Chill, Esq., The Chrysler Building, 405 Lexington Avenue, 19th Floor, New York, New York 10174, (212) 818-8800
Richard F. Braun, J.
It is fundamental that the function of the courts is to determine controversies between litigants... (sic) They do not give advisory opinions. The giving of such opinions is not the exercise of the [*3]judicial function. This is not merely a question of judicial prudence or restraint; it is a constitutional command defining the proper role of the courts under a common-law system.
Thus it is settled that the courts will not entertain a declaratory judgment action when any decree that the court might issue will become effective only upon the occurrence of a future event that may or may not come to pass.... The same principle applies when a party challenges a statute which has not become effective. [U]ntil the statute or ordinance is passed, a declaratory judgment would be premature.
Dated: New York, New York
Footnote 1: Only defendants/respondents Nozzolio and McEneny have appeared and moved in this action/proceeding, and counsel for McEneny failed to attend oral argument on the return date of the motion.
Footnote 2: CPLR 3001 provides in pertinent part: "The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed."
Footnote 3: Indeed, the three judge Federal Court in Favors v Cuomo (US Dist Ct, ED NY 11 Civ 5632), already empaneled pursuant to 28 USC § 2284 (b) to deal with the current congressional redistricting impasse, may be required to map New York State Senate and Assembly districts as well, and the Federal Court will undoubtedly endeavor to do so in conformity with both State and Federal Constitutional mandates.
Footnote 4: The fact that defendant/respondent LATFOR has not appeared or moved, and that the attorney for defendant/respondent McEneny defaulted in appearing for oral argument would not allow the claims to continue against them. The fact that the claims are not justiciable, which goes to the subject matter jurisdiction of the court, requires dismissal of the claims regardless of whether those parties have extant motions to dismiss (see Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 523 ; cf. Matter of Anderberg v New York State Dept. of Envtl. Conservation, 141 Misc 2d 594, 598-599 [Sup Ct, Albany County 1988] [where an article 78 proceeding was dismissed because the relief sought thereunder was premature, a motion for a default judgment against a respondent was denied because the issues in the proceeding were not properly before the court]).