U.A. Plumbers & Steamfitters v. City of Niagara Falls

Appellate Division of the Supreme Court of New York

U.A. Plumbers & Steamfitters v. City of Niagara Falls

57 A.D.3d 1467, 869 N.Y.2d 830

Appellate Division of the Supreme Court of the State of New York·Decided December 31, 2008·Published

Opinion

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to determine whether a certain plumbing company was violating various provisions of the Plumbing Code of respondent City of Niagara Falls (City). The City appeals from a judgment denying respondents’ motion to dismiss the petition and, instead, granting the petition and mandating that respondents conduct a public hearing on the matters at issue in the petition. We reverse.

“The extraordinary remedy of mandamus lies only to compel the performance of a ministerial act and only where there exists a clear right to the relief sought” (Matter of Priest v Mareane, 45 AD3d 1474, 1475 [2007], lv denied 10 NY3d 704 [2008]). Here, petitioner failed to cite to “any statute, rule, regulation or [1468]*1468case law requiring” respondents to investigate the allegations raised by petitioner and thus failed to establish a clear right to the relief sought (Sightseeing Tours of Am., Inc. v Air Pegasus Heliport, Inc., 40 AD3d 354, 355 [2007], lv denied 9 NY3d 817 [2008]). Present—Hurlbutt, J.P, Martoche, Smith, Peradotto and Green, JJ.

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Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to determine whether a certain plumbing company was violating various provisions of the Plumbing Code of respondent City of Niagara Falls (City). The City appeals from a judgment denying respondents’ motion to dismiss the petition and, instead, granting the petition and mandating that respondents conduct a public hearing on the matters at issue in the petition. We reverse.

“The extraordinary remedy of mandamus lies only to compel the performance of a ministerial act and only where there exists a clear right to the relief sought” (Matter of Priest v Mareane, 45 AD3d 1474, 1475 [2007], lv denied 10 NY3d 704 [2008]). Here, petitioner failed to cite to “any statute, rule, regulation or [1468]*1468case law requiring” respondents to investigate the allegations raised by petitioner and thus failed to establish a clear right to the relief sought (Sightseeing Tours of Am., Inc. v Air Pegasus Heliport, Inc., 40 AD3d 354, 355 [2007], lv denied 9 NY3d 817 [2008]). Present—Hurlbutt, J.P, Martoche, Smith, Peradotto and Green, JJ.

U.A. Plumbers & Steamfitters v. City of Niagara Falls, 57 A.D.3d 1467, 869 N.Y.2d 830 (N.Y. Ct. App. 2008).

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Opinion

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