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Supreme Court of New York, Appellate Division, First Department
June 24, 2021, Decided; June 24, 2021, Entered
Index No. 260054/20, Appeal No. 13911, Case No. 2020-04520
[**714] [*29] Petitioner [***2] appeals from the order and judgment (one paper), of the Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about September 16, 2020, which denied as moot the petition seeking a writ of mandamus to compel respondent Criminal Court Judge to hold an evidentiary hearing concerning the appropriateness and scope of a temporary order of protection, and dismissed as moot this proceeding brought pursuant to CPLR article 78.
We are asked to decide whether Supreme Court properly denied as moot the petition for a writ of mandamus to compel respondent Criminal Court Judge to hold an evidentiary hearing concerning the appropriateness and scope of a temporary order of protection (TOP) and dismissed the proceeding as moot. The parties agree that this proceeding is moot, since the TOP in the underlying criminal proceeding was renewed without the condition that petitioner stay away from the complainant's home, as petitioner had sought, and the charges against petitioner were dismissed while the proceeding was pending in Supreme Court. They disagree as to whether the proceeding presents an exception to the mootness doctrine which would allow us nevertheless to rule on the petition. We [***3] find that the mootness exception applies here and accordingly, we reverse to the extent of declaring that the court should have held an evidentiary hearing.
On November 3, 2019, petitioner was arrested on a criminal complaint charging her with third-degree assault, petit larceny, [*30] obstruction of breathing or blood circulation, and second-degree harassment, based on sworn allegations by her partner, nonparty Keivian Mayers (Mayers), that she and two men assaulted him. This incident allegedly occurred inside 1232 Clay Avenue, Apt. 4B, Bronx, New York.
At petitioner's arraignment in Criminal Court, the People consented to petitioner's release but requested a TOP. The court issued a TOP prohibiting petitioner [****2] from contacting Mayers and granted petitioner's request that it be "subject to [F]amily [C]ourt modification," but denied her request to issue a "limited" TOP. The TOP itself, effective until November 8, 2019, prohibited petitioner from entering Mayers's home, listed as the address where the [**715] alleged incident occurred, except to retrieve personal items the following day.
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197 A.D.3d 27 *; 150 N.Y.S.3d 712 **; 2021 N.Y. App. Div. LEXIS 4193 ***; 2021 NY Slip Op 04082 ****
[****1] In the Matter of Shamika Crawford, Petitioner-Appellant, v Honorable Shahabuddeen Ally, etc., et al., Respondents-Respondents. Lambda Legal Defense and Education Fund, Inc., New York City Gay and Lesbian Anti-Violence Project, The Sylvia Rivera Law Project, Transgender Law Center, Brooklyn Defender Services, The Legal Aid Society and Neighborhood Defender Service of Harlem, Amici Curiae.
Notice: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.
THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
Subsequent History: Counsel Amended July 13, 2021.
Prior History: Crawford v. Ally, 2020 N.Y. Misc. LEXIS 17626 (N.Y. Sup. Ct., Sept. 9, 2020)
moot, evidentiary hearing, temporary order, apartment, mandamus
Civil Procedure, Justiciability, Mootness, Evading Review Exception, Family Law, Family Protection & Welfare, Cohabitants & Spouses, Abuse, Endangerment & Neglect, Preliminary Considerations, Mootness, Real Controversy Requirement, Constitutional Law, Fundamental Rights, Procedural Due Process, Scope of Protection, Real Property Law, Landlord & Tenant, Tenant's Remedies & Rights, Constitutional Rights, Services