Perazzo v. Lindsay

30 A.D.2d 179, 290 N.Y.S.2d 971, 1968 N.Y. App. Div. LEXIS 3712

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1968
• Status: Published

Opinions

Per Curiam.

This proceeding, instituted pursuant to article 78 of the CPLR, seeks mandamus type relief against the Mayor, the Police Commissioner and the Commissioner of Licenses of the City of New York in the matter of enforcement of Penal Law and Administrative Code provisions and licensing regulations alleged to be the subject of general violation in the Greenwich Village area. The petition and supporting affidavits, however, fail to present any proper basis for the interference by the court with the discretionary powers vested in these public officials. The petitioners, as property owners, taxpayers and residents of the particular area, do not have the general right to maintain an article 78 proceeding to secure broad mandamus relief generally directed to the enforcement of the specified laws and ordinances.

It is well settled that the court will not usually interfere with the details of municipal administration or law enforcement. (See Matter of Walsh v. La Guardia, 269 N. Y. 437; Matter of Silberman v. De Hoyos, 11 A D 2d 853; Matter of International Ry. Co. v. Schwab, 203 App. Div. 68, app. dsmd. 235 N. Y. 562; People ex rel. Judge v. Hylan, 200 App. Div. 430; Matter of Prentice v. Gulotta, 13 Misc 2d 280; Matter of Ungar v. Wagner, 22 Misc 2d 403; People ex rel. Clapp v. Listman, 40 Misc. 372, affd. 84 App. Div. 633; cf. R. v. Metropolitan Police Comr., [1968] 1 All E.R 763.) “ It is the settled policy of the courts not to review the exercise of discretion by public officials in the enforcement of State statutes, in the absence of a clear violation of some constitutional mandate.” (Gaynor v. Rockefeller, 15 N Y 2d 120, 131). The details of municipal administration “ are entrusted by the people to officers chosen directly or indirectly by themselves. * * * The Supreme Court is not so organized as to enable it conveniently to assume a general supervisory power over their acts; and, indeed, such an assumption by it would be contrary to the whole spirit and intent of our government. ” (Matter of International Ry. Co. v. Schwab, supra, p. 74). “ According to our scheme of government the power of the judicial branch to substitute its mandate for executive action is strictly limited. Such an invasion of the executive prerogative is only permissible when the facts show an uncontestable right to the performance of a ministerial act ” (Matter of Ungar v. Wagner, supra, p. 404, (Steuer, J.).

There is no showing of any proper basis for the issuance of a court directive to compel the respondent officers to take action with respect to the alleged disorderly and unlawful activities in the particular area, nor to compel the enforcement by them of the various provisions of the Administrative Code governing the maintenance, operation and licensing of coffee houses in the area. There is no allegation here of any violation of a mandatory public duty to perform a specific official act as to which there is no discretion. The alleged official derelictions in the matter of violations in the operation of coffee houses are not shown to result from a failure to perform mandatory public duties, nor is there a showing that certain action by the respondent officers is required at this time for the protection of the public health, welfare or morals. Therefore, the petition is not sustainable.

The order, entered January 17, 1968, should be reversed and vacated, on the law, without costs or disbursements, and the petition should be dismissed, without costs.