Briarwood Builders, Inc. v. Shearer

252 A.D.2d 944, 674 N.Y.S.2d 595, 1998 N.Y. App. Div. LEXIS 8437

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 8, 1998
• Status: Published

Opinion

—Judgment unanimously reversed on the law without costs, motion denied and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in failing to permit respondents to answer the petition and in sua sponte granting the petition. The act that petitioners seek to compel, the certification that the Village of Webster will furnish an adequate and satisfactory water supply to a proposed subdivision located in the Town of Webster, is not purely ministerial, but rather, involves the exercise of discretion. Thus, this proceeding is in the nature of mandamus to review rather than mandamus to compel (see, Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758; Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16), and the issue is whether the action of respondents, in withholding the requested certification, was arbitrary and capricious or affected by an error of law (see, Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., supra, at 758; Matter of County of Wyoming v Division of Criminal Justice Servs., 83 AD2d 25, 28). We therefore remit this matter to Supreme Court to permit respondents to answer the petition (see, CPLR 7804 [f]) and to conduct a trial, if necessary, on that issue (see, CPLR 7804 [h]). (Appeal from Judgment of Supreme Court, Monroe County, Calvaruso, J. — CPLR art 78.) Present — Denman, P. J., Green, Pigott, Jr., Balio and Boehm, JJ.