Kousoulas v. Colello

97 A.D.2d 765, 468 N.Y.S.2d 396, 1983 N.Y. App. Div. LEXIS 20510

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1983
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to compel respondents, members of the Town Board of Orangetown and the Commissioner and Executive Director of the Town of Orangetown’s Department of Public Works, to repair or replace an existing retaining wall, petitioners appeal from a judgment of the Supreme Court, Rockland County (Slifkin, J.), entered April 13, 1983, which denied the application. Judgment affirmed, without costs or disbursements. We agree with Special Term that petitioners have failed to establish the “clear legal right” to the relief sought which is necessary to maintain an article 78 proceeding in the nature of mandamus (see, e.g., Matter of Association of Surrogates & Supreme Ct. Reporters v Bartlett, 40 NY2d 571, 574). Section 32 and subdivision 3 of section 64 of the Town Law and subdivision 2 of section 140 of the Highway Law do not impose any duty upon the respondents to replace or repair the retaining wall in issue (see Bogner-Seitel Lbr. Co. v Town of Liberty, 89 Mise 2d 751; Matter of Horan v Dominy, 43 Mise 2d 62; Matter of Wilson v Board of Supervisors, 152 Mise 645). Mollen, P. J., Titone, Lazer and Rubin, JJ., concur.