Duban v. State Bd. of Law Examiners
| Decision Date | 18 January 1990 |
| Parties | In the Matter of Jeffrey M. DUBAN, Appellant, v. STATE BOARD OF LAW EXAMINERS et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Elliot B. Pasik, New York City, for appellant.
Robert Abrams, Atty. Gen. (Frank K. Walsh, of counsel), Albany, for respondents.
Before CASEY, J.P., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.
CASEY, Justice Presiding.
Appeal from a judgment of the Supreme Court (Keniry, J.), entered September 30, 1988 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent State Board of Law Examiners denying petitioner's request for certain information regarding his bar examination results.
Petitioner, who sat for and passed the July 1986 New York bar examination, seeks release of certain of his test scores from that examination pursuant to the Freedom of Information Law (Public Officers Law art. 6). The record reveals, however, that in accordance with its normal practice (see, 22 NYCRR 520.7[c], respondent State Board of Law Examiners destroyed petitioner's examination in November 1987 or February 1988 and cannot produce the information sought by petitioner. Since the parties' rights cannot be affected by a determination of this appeal, it is moot and must be dismissed unless it falls within the exception "which permits the courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable" (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876). There are three common factors in those cases where the exception has been applied: "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" (id., at 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876). In our view, this case contains none of these factors.
Since it is unlikely that petitioner will sit for the bar examination again, there is little likelihood of any repetition between the parties. Only a very narrow segment of the public ever sits for a bar examination and there is nothing to indicate that any significant number of those who pass the examination have any further interest in their test scores.
This case does not involve a phenomenon typically evading review (see, Matter of Pasik v. State Bd. of Law Examiners, 102...
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...although it is an issue of some importance whose resolution will affect numerous individuals (cf., Matter of Duban v. State Bd. of Law Examiners, 157 A.D.2d 946, 948, 550 N.Y.S.2d 207, lv. dismissed 75 N.Y.2d 945, 555 N.Y.S.2d 689, 554 N.E.2d 1277), it is one which, arising as it does under......
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...that the issue is likely to recur and, should it recur, that it is likely to escape review (see, id.; Matter of Duban v. State Bd. of Law Examiners, 157 A.D.2d 946, 947, 550 N.Y.S.2d 207, lv dismissed 75 N.Y.2d 945, 555 N.Y.S.2d 689, 554 N.E.2d 1277). In that connection, we note that, of th......
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...v. New York State Div. of State Police, 248 A.D.2d 920, 921, 669 N.Y.S.2d 990 [1998]; Matter of Duban v. State Bd. of Law Examiners, 157 A.D.2d 946, 947, 550 N.Y.S.2d 207 [1990], lv. dismissed 75 N.Y.2d 945, 555 N.Y.S.2d 689, 554 N.E.2d 1277 [1990] ). ORDERED that the judgment is affirmed, ......
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