Calendar Date: March 30, 2018Before: McCarthy, J.P., Clark, Mulvey, Aarons and Rumsey, JJ.__________Gleason, Dunn, Walsh & O’Shea, Albany (Brendan D. Sansiveroof counsel), for appellants.Barbara D. Underwood, Acting Attorney General, Albany(Jeffrey W. Lang of counsel), for respondents.__________McCarthy, J.P.Appeal from an order of the Supreme Court (Young, J.),entered November 16, 2016 in Albany County, which, in aproceeding pursuant to CPLR article 78, granted respondents’motion to dismiss the petition.Pursuant to Retirement and Social Security Law § 211, awaiver is required for a retired state or municipal employee tobe employed in a public service position making a certain salarywhile continuing to receive his or her pension. Petitionersallege that the position of Chief of University Police atrespondent State University of New York, College at Brockportbecame vacant and that the two individual petitioners applied forthe position and met all of the required qualifications. EdwardGiblin, who was retired from public service and receiving apension, was offered and accepted the position. Petitionerscommenced this CPLR article 78 proceeding alleging thatrespondents violated Retirement and Social Security Law § 211 byhiring Giblin and granting him a waiver despite having available,qualified, nonretired applicants (see Retirement and SocialSecurity Law § 211 [2] [b] [5] [ii]). Petitioners sought anorder compelling respondents to rescind the waiver issued toGiblin. Supreme Court granted respondents’ motion to dismiss thepetition based on lack of standing. Petitioners appeal.We dismiss the appeal as moot. Typically, “an appeal willbe considered moot unless the rights of the parties will bedirectly affected by the determination of the appeal and theinterest of the parties is an immediate consequence of thejudgment” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714[1980]). Because Giblin retired from the position in 2017, andthe waiver is therefore no longer in effect, petitioners cannotreceive the relief requested in the petition, rendering thematter moot. An exception to the mootness doctrine exists, thuspermitting judicial review, where the issues are substantial ornovel, likely to recur either between the parties or betweenother members of the public, and involve “a phenomenon typicallyevading review” (id. at 714-715; see City of New York v Maul, 14NY3d 499, 507 [2010]; Matter of Westchester Rockland Newspapers vLeggett, 48 NY2d 430, 437-438 [1979]). We do not find that theexception applies here.Clark, Mulvey, Aarons and Rumsey, JJ., concur.ORDERED that the appeal is dismissed, as moot, withoutcosts and order vacated.ENTER:Robert D. MaybergerClerk of the Court
