Parkview Holding Corp. v. Starr

47 A.D.2d 639, 363 N.Y.S.2d 661, 1975 N.Y. App. Div. LEXIS 8803

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1975
• Status: Published

Opinion

In an action for a declaratory judgment and injunctive relief, plaintiffs appeal from an order of the Supreme Court, Queens County, dated September 4, 1974, which denied their motion for a preliminary injunction and granted cross motions of the defendants and of the defendantintervenor for summary judgment dismissing the complaint. Order modified, on the law, (1) by striking therefrom the second and third decretal paragraphs thereof, which granted the cross motions, and substituting therefor a provision denying the cross motions and (2) by adding thereto a provision that the action is deemed converted into a proceeding pursuant to article 78 of the CPLR and that final judgment is granted to petitioners (plaintiffs) directing respondents (defendants) to render a determination on petitioners’ applications within 30 days after entry of the order to be made hereon. As so modified, order affirmed, without costs. Plaintiff landlords’ applications to transfer electrical service from a rent inclusion basis to a direct payment basis in accordance with the existing schedule for rent decreases were admittedly filed in November, 1973. The respondent city officials have delayed their determination pending approval by the State Rent Commissioner of a revised schedule of decreases, as mandated by statute (L. 1971, eh. 1012). On the record, a proceeding under article 78 of the CPLR in the nature of mandamus is the appropriate remedy. Administrative officials may not refuse to make whatever determination they consider appropriate on plaintiffs’ applications within a reasonable time (cf. Matter of Island Improvements v. May, 231 App. Div. 837). Hopkins, Acting P. J., Martuscello, Brennan, Benjamin and Shapiro, JJ., concur.