Mehta v. New York City Dept. of Consumer Affairs

• Decision Date: 14 June 1990
• Citation: Mehta v. New York City Dept. of Consumer Affairs, 556 N.Y.S.2d 601, 162 A.D.2d 236 (N.Y. App. Div. 1990)
• Parties: In re Application of Kishor MEHTA, Petitioner-Appellant, For a Judgment etc., v. The NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS et al., Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 601

556 N.Y.S.2d 601

162 A.D.2d 236

In re Application of Kishor MEHTA, Petitioner-Appellant For a Judgment etc., v.The NEW YORK CITY DEPARTMENT OF CONSUMER AFFAIRS et al Respondents-Respondents.

Supreme Court, Appellate Division First Department.

June 14, 1990.

R. Bookman, New York City, for petitioner-appellant.

H.P. Brown, for respondents-respondents.

Before KUPFERMAN, J.P., and ROSS, ELLERIN, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Norman C. Ryp, J.), entered February 15, 1989, which dismissed petitioner's CPLR Article 78 petition, which was brought to review the decision of respondentDepartment of Consumer Affairs, made on or about November 11, 1980, removing petitioner from a waiting list to operate a sidewalk newsstand, and which sought monetary damages, unanimously affirmed, without costs.

Petitioner applied for and was eventually issued a license by respondentDepartment of Consumer Affairs to construct and operate a new newsstand on November 19, 1980.In the meantime, he had requested that his name also be placed on the waiting list for existing newsstands and received number C-25.As part of the final processing of petitioner's application for the new newsstand, his name was removed from the waiting list for existing newsstands, pursuant to a then existing policy which prohibited persons from obtaining more than one license to operate a newsstand.In response to a query regarding his status on the waiting list, petitioner was informed, on March 15, 1984, that his name had been removed, but he was offered a new position on the list.He accepted and was assigned number C-235.During the next three and one-half years, he unsuccessfully attempted to be reinstated to his original position.

Petitioner commenced this action for review, contending his removal was arbitrary and capricious, seeking reinstatement to his original position, and also seeking lost profits and punitive damages.Respondent moved to dismiss on the grounds that the statute of limitations had expired, the petition was defeated by the doctrine of laches, waiver and estoppel, that petitioner failed to state a claim upon which relief could be granted, and that damages were too remote, speculative and uncertain.In the meantime, without admitting any wrongdoing, respondent placed petitioner at the top of the newsstand waiting list, assigning him number A-1, whereby he would receive the next available existing newsstand at a location acceptable to him.At oral argument it was indicated that petitioner had already obtained another newsstand which was in operation.

The court declared the application moot, denied the request for lost profits as the newsstand in question had not been established and thus calculation of actual damages and/or profits remained too speculative, and dismissed the petition.We agree.

Where during the pendency of a proceeding to review an agency determination, there has been subsequent action taken which has resolved the issue in dispute, the proceeding should be...