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U.A. Plumbers and Steamfitters, Local No. 22 v. City of Niagara Falls

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

IN THE MATTER OF U.A. PLUMBERS AND STEAMFITTERS, LOCAL NO. 22, PETITIONER-RESPONDENT,
v.
CITY OF NIAGARA FALLS, RESPONDENT-APPELLANT, ET AL., RESPONDENTS.

Appeal from a judgment (denominated order) of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January 22, 2008 in a proceeding pursuant to CPLR article 78. The judgment, inter alia, granted the petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: HURLBUTT, J.P., MARTOCHE, SMITH, PERADOTTO, AND GREEN, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is granted, and the petition is dismissed.

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, lv denied 10 NY3d 704). Here, petitioner failed to cite to "any statute, rule, regulation or case 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, lv denied 9 NY3d 817).

20081231

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