Simon v. Nortrax N.E., LLC

Oct 30, 2007
Versions:44 A.D.3d 1027
845 N.Y.S.2d 85

In an action to recover damages for personal injuries, the defendant A. Montano Company, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered August 17, 2006, as denied that branch of its motion which was “for a declaration that this action was commenced on September 21, 2005.”

Ordered that the order is affirmed insofar as appealed from, with costs.

“The courts of New York do not issue advisory opinions for the fundamental reason that in this State ‘[t]he giving of such opinions is not the exercise of the judicial function’ ” (Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988], quoting Self-Insurer’s Assn. v State Indus. Commn., 224 NY 13, 16 [1918]). Thus, courts may not issue judicial decisions which “can have no immediate effect and may never resolve anything” (New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531 [1977]). Here, the appellant moved, inter alia, for a declaration that this action was commenced on September 21, 2005 to determine the viability of a potential defense based upon the enactment of the Transportation Equity Act of 2005 (49 USCA § 30106), which went into effect on August 10, 2005. Under these circumstances, that branch of the appellant‘s motion which was for an order declaring the date of commencement of the action constituted, in essence, an impermissible request for an advisory opinion. Since the appellant was not entitled to such relief, the Supreme Court properly denied that branch of its motion. Spolzino, J.P., Krausman, Fisher and Angiolillo, JJ., concur.