Argued February 14, 2013; decided March 21, 2013

Matter of Duarte v City of New York, 91 AD3d 778, appeal dismissed.

APPEARANCES OF COUNSEL

Michael A. Cardozo, Corporation Counsel, New York City (Fay Ng, Pamela Seider Dolgow and Janice Birnbaum of counsel), for appellant.

Curtis, Mallet-Prevost, Colt & Mosle, LLP, New York City (Valentina M. Morales of counsel), and Nixon Peabody LLP, Manchester, New Hampshire (Morgan Nighan of counsel), for respondent.

Morningside Heights Legal Services, Inc., New York City (Philip M. Genty of counsel), for Columbia Law School Prisoners and Families Clinic, amicus curiae.

Steven Banks, Legal Aid Society, New York City (Dori A. Lewis of counsel), for Prisoners' Rights Project of the New York City Legal Aid Society, amicus curiae.

Memorandum.

The appeal should be dismissed, without costs, as moot.

Respondent City of New York has asked us to review whether it was error for the Appellate Division to conclude that it was arbitrary and capricious for the New York City Department of Correction to deny petitioner's application to enter the nursery program at the Rose M. Singer Center at Rikers Island. We agree with petitioner that this proceeding is moot [*2]because her child is now of an age that renders him ineligible for participation in the nursery program pursuant to Correction Law § 611. Moreover, in light of the Department of Correction's revised nursery order, effective February 11, 2013, we decline to invoke the mootness exception (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera concur.

Appeal dismissed, without costs, as moot, in a memorandum.