Waxenbaum v. Seward Park Housing Corp.

24 Misc. 2d 35, 201 N.Y.S.2d 849, 1960 N.Y. Misc. LEXIS 3179

• Court: New York Supreme Court
• Decided: April 13, 1960
• Status: Published

Opinion

William C. Hecht, Jr., J.

Petitioner brings this mandamus proceeding to compel respondents to grant him a preference in obtaining an apartment in the Seward Park Housing Project.

The claim is based upon a provision in the contract between the City of New York and the owners of the project which provides: “ Tenants on the site of this project shall, without discrimination, * * * be given preference in the completed project, provided such tenants meet and comply with all Housing Company’s uniform requirements as to rental and otherwise affecting all tenants.”

The contract also provides that the city shall use its best efforts to co-operate and assist in removal and relocation of tenants.

As respondents point out however, the contract contains a section which provides that no person, other than the parties thereto and other specifically named persons, have any rights undfer it.

It is clear therefore, as respondents maintain, that in the absence of such a provision, at best, petitioner’s rights, if any, would be enforeible in a plenary action should he assert his right as a third-party beneficiary under the contract.

In no event, however, may petitioner seek to enforce his rights under a mandamus proceeding such as this. No lengthy discussion is deemed necessary in the well-established rule that mandamus is a remedy available only to a person as a member of the public to compel the performance by public officials of acts clearly mandated by law (Matter of Newman v. Smith, 263 App. Div. 85, affd. 289 N. Y. 545).

Section 72-k of the General Municipal Law, cited by petitioner in support of his claim for priority, does not avail him. There is no provision in this section which compels the city to force a sponsor of a housing project to give priority to a tenant about to be displaced.

Petitioner has failed to establish that he has been denied a substantial constitutional right as he contends, or that he is entitled to bring this proceeding in the form adopted by him.

Consequently the application is denied and the cross motion to dismiss the petition is granted.