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September 04, 2024

Concerning obtaining a court order in the nature of a writ of mandamus

In this CPLR Article 78 action the Appellate Division noted that "Mandamus* to compel performance [by a public officer or agency] is an extraordinary remedy that is available only in limited circumstances", citing Matter of Hene v Egan, 206 AD3d 734The court explained "[M]andamus will lie against an administrative officer only to compel him or her to perform a legal duty". 

Citing Matter of Antwine v Evans, 219 AD3d 480, the Appellate Division said a petitioner seeking mandamus to compel a public official to act must "demonstrate a clear legal right to the relief sought".

The Appellate Division then affirmed Supreme Court's ruling granting the County's motion dismiss the Plaintiff's petition, noting that Plaintiff had failed to identify any legal duty incumbent on the County that would support issuing such a "writ". 

Further, opined the Appellate Division, the action the Plaintiff sought was not a purely ministerial act, but rather an expressly discretionary act, requiring notice, an administrative hearing, and a finding supported by substantial evidence of violation of the relevant provision or provisions of law, rule or regulation.

* Other such ancients writs include a writ of prohibition issued by a higher tribunal to a lower tribunal to "prohibit" adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of injunction - a judicial order preventing a public official from performing an act; the writ of certiorari, compelling a lower court to send the record of a case to the higher tribunal for review by the higher tribunal; and the writ of quo warranto [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of surviving ancient writs.

Click HERE to access the decision of the Appellate Division posted on the Internet.


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