Great Lakes Dredge & Dock Co. v. Wagner

Appellate Division of the Supreme Court of New York

Great Lakes Dredge & Dock Co. v. Wagner

46 A.D.2d 721, 360 N.Y.S.2d 337, 1974 N.Y. App. Div. LEXIS 3870

Appellate Division of the Supreme Court of the State of New York·Decided October 24, 1974·Published·Cited by 3 cases

Opinion

Order unanimously affirmed, without costs. Memorandum: Petitioner contractors and joint venturers sought payment from the respondent City of Rochester on a completed construction project by an article 78 proceeding to mandamus the City Comptroller to pay the balance alleged to be due it under the contract. Respondent’s motion to dismiss the petition under CPLR 7804 (subd. [f]) was granted at Special Term. Mandamus relief is generally inappropriate where a plenary action is available to recover damages for breach of contract. Each case must depend on the sound exercise of the court’s discretion (Matter of Corbeau Constr. Corp. v. Board of Educ., Union Free School Dist. No. 9, 32 A D 2d 958). Here respondent city’s affidavit established that the joint venturers—- appellants herein — have been joined as parties-defendants in a pending action in the Supreme, Court of Monroe County. Complete relief may be afforded to appellants in that action. Appellants who are seeking mandamus are required to demonstrate the necessity and propriety of this type of relief (Matter of Coombs v. Edwards, 280 N. Y. 361), and have failed to do so in this case. Since jurisdiction has already been obtained over all the parties in the pending plenary action where the conflicting contractual claims may be determined, we find no abuse of discretion by Special Term in its conclusion that relief by way of mandamus is inappropriate (Matter of Corbeau Constr. Corp. v. Board of Educ., Union Free School Dist. No. 9, supra; Matter of Five Boro Constr. Corp. v. Moses, 9 A D 2d 360, 362; Matter of Buffalo Dump Truck Owners' Assn. v. Condon, 232 App. Div. 273, ;274). In view of this conclusion, it is not necessary to pass upon the other grounds for dismissal relied upon at Special Term. (Appeal from part of order of Monroe Special Term denying motion to vacate dismissal of petition.) Present — Marsh, P. J., Cardamone, Simons, Goldman and Del Veeehio, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order unanimously affirmed, without costs. Memorandum: Petitioner contractors and joint venturers sought payment from the respondent City of Rochester on a completed construction project by an article 78 proceeding to mandamus the City Comptroller to pay the balance alleged to be due it under the contract. Respondent’s motion to dismiss the petition under CPLR 7804 (subd. [f]) was granted at Special Term. Mandamus relief is generally inappropriate where a plenary action is available to recover damages for breach of contract. Each case must depend on the sound exercise of the court’s discretion (Matter of Corbeau Constr. Corp. v. Board of Educ., Union Free School Dist. No. 9, 32 A D 2d 958). Here respondent city’s affidavit established that the joint venturers—- appellants herein — have been joined as parties-defendants in a pending action in the Supreme, Court of Monroe County. Complete relief may be afforded to appellants in that action. Appellants who are seeking mandamus are required to demonstrate the necessity and propriety of this type of relief (Matter of Coombs v. Edwards, 280 N. Y. 361), and have failed to do so in this case. Since jurisdiction has already been obtained over all the parties in the pending plenary action where the conflicting contractual claims may be determined, we find no abuse of discretion by Special Term in its conclusion that relief by way of mandamus is inappropriate (Matter of Corbeau Constr. Corp. v. Board of Educ., Union Free School Dist. No. 9, supra; Matter of Five Boro Constr. Corp. v. Moses, 9 A D 2d 360, 362; Matter of Buffalo Dump Truck Owners' Assn. v. Condon, 232 App. Div. 273, ;274). In view of this conclusion, it is not necessary to pass upon the other grounds for dismissal relied upon at Special Term. (Appeal from part of order of Monroe Special Term denying motion to vacate dismissal of petition.) Present — Marsh, P. J., Cardamone, Simons, Goldman and Del Veeehio, JJ.

Great Lakes Dredge & Dock Co. v. Wagner, 46 A.D.2d 721, 360 N.Y.S.2d 337, 1974 N.Y. App. Div. LEXIS 3870 (N.Y. Ct. App. 1974).

Pincite

46 A.D.2d 721 (Great Lakes Dredge & Dock Co. v. Wagner) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related