
    In the Matter of Carlotta R. Alvarado, as Mother and Natural Guardian of Luis A. Alvarado, an Infant, et al., Appellants, v City of New York et al., Respondents, and New York State Department of Health, Intervenor-Respondent.
   —Order, Supreme Court, New York County (Helen Freedman, J.), entered on November 3, 1989, which, inter alia, rejected petitioners’ constitutional challenge to the New York State Department of Health regulation governing determination of death (10 NYCRR 400.16) and held that the infant petitioner, Luis Alvarado, was brain dead pursuant to the criteria established therein, thereby permitting respondents to remove life support systems, unanimously vacated, on consent of respondents, and the appeal therefrom is dismissed as academic, without costs.

Subsequent to the issuance of the order appealed from, the municipal respondents determined, on the basis of new medical findings, that the condition of the infant petitioner does not constitute brain death as defined in 10 NYCRR 400.16 (a) (2) and have consented to vacatur of the order. In addition, respondents have agreed to seek judicial review before conducting further tests for the purposes of determining whether the infant petitioner is brain dead and before disconnecting life support systems based upon any such determination.

Accordingly, the order appealed from is vacated on consent of respondents, respondents are directed to seek judicial review as indicated, and the appeal is dismissed as academic. Concur—Kupferman, J. P., Carro, Asch, Kassal and Smith, JJ.  