Posted by: Patricia Salkin | August 19, 2019

NY Appellate Court Holds Writ of Mandamus was Not Available Remedy, Since Department’s Determination Not to Issue Notice of Violation Following Its Own Inspection was Exercise of Discretion

This post was authored by Matthew Loeser, Esq.

An interested party commenced an article 78 proceeding seeking writ of mandamus to compel the New York City Department of Buildings to issue a final notice of violation of city administrative code arising from building construction. The Supreme Court, New York County, granted the petition to compel respondent Department of Buildings (“DOB”) to issue a notice of violation to the past and present owners of intervenor Sofitel New York Hotel to the extent of directing DOB to issue a final determination.

The court noted at the outset that the DOB’s determination not to issue a notice of violation to the past and present owners of the Sofitel Hotel for failure to comply with Administrative Code of City of N.Y. § 27–860 following its own inspection involved the exercise of discretion, rather than the performance of a mandatory, non-discretionary act. As such, a writ of mandamus to compel was not available as a remedy. The court therefore found that petitioner was also not entitled to a writ of mandamus compelling DOB to issue a final determination on petitioner’s request, which would afford petitioner further administrative review by the New York City Board of Standards and Appeals, as it failed to identify any authority establishing that it had a clear legal right for the same.

The court lastly noted that assuming that DOB’s letter to petitioners was a final determination permitting article 78 review, the fact that the determination involved the exercise of discretion did not mean that it was unreviewable under CPLR 7803(3). Notwithstanding this, the court found that petitioner failed to establish that DOB’s determination not to issue a violation was arbitrary and capricious or constituted an abuse of discretion.

New York City Yacht Club v. New York City Department of Buildings, 172 A.D.3d 606 (1 Dept. 5/28/2019)


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