The writ of mandamus and other ancient common law "writs"

In order to compel a public officer or body to perform a particular act or correct an omission, a party may seek a court order in the nature of a Writ of Mandamus, one of the ancient writs in common law. This writ is an extraordinary remedy and if granted by the court, would compel "an officer or body to perform a specified ministerial act that is required by law to be performed".

In contrast, mandamus "does not lie to enforce a task or duty that is discretionary" as demonstrated by the decisions in Alliance to End Chickens as Kaporos v New York City Police Dept., 152 AD3d 113, affd 32 NY3d 1091, cert denied, 139 S Ct 2651; and  Matter of Meyer v Zucker, 185 AD3d 1265, lv denied 36 NY3d 904).

As the Appellate Division explained in Alliance, supra, "A ministerial act is best described as one that is mandated by some rule, law or other standard and typically involves a compulsory result". Further, mandamus is not available to compel an officer or body to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment. In other words, as the Court of Appeals opined in Klostermann v Cuomo, 61 NY2d 525, mandamus will lie to compel a body to perform a mandated duty, not how that duty is to be performed.

As the Appellate Division noted in Matter of Willows Condominium Assn. v Town of Greenburgh, 153 AD3d 535, quoting Tango v Tulevech, 61 NY2d 34, "A discretionary act 'involves the exercise of reasoned judgment which could typically produce different acceptable results[,] whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result' ".

Other ancient common law writs include the writ of prohibition issued by a higher tribunal to a lower tribunal to "prohibit" the 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 its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority].

 The University of Southern California [USC] Gould School of Law has created an "English Medieval Legal Documents Database, A Compilation of Published Sources from 600 to 1535" which it has posted on the Internet. Click HERE to access this resource posted by USC.

New York's Civil Practice Law and Rules [CPLR], sets out the modern equivalents of the surviving ancient writs available in New York jurisprudence as noted in Matter of Brusco v Braun, 84 NY2d 674.

 

 

Vicarious liability of agencies for the alleged negligence of operators of the agency's fire and other emergency vehicles

In recognition of the unique responsibilities placed on fire truck and other emergency vehicle operators to respond quickly to calls for aid, Vehicle and Traffic Law §1104 grants such drivers the "privilege" to proceed past red lights when involved in emergency operations, as long as specified safety precautions are observed and they do not act recklessly.*

With respect to volunteer fire companies, General Municipal Law §205-b makes fire districts vicariously liable "for the negligence of volunteer firefighters" when they operate fire district vehicles in the discharge of their duties.

The issue before the Court of Appeals in this action was whether the relevant statutes authorize a claim against a fire district for the alleged "negligence" of a volunteer firefighter when the firefighter's actions are otherwise privileged and subject to a heightened recklessness standard under Vehicle and Traffic Law §1104.

The Court of Appeals concluded that that imposition of vicarious liability for a driver's negligence within the context of the instant appeal would be contrary to legislative intent, the precedents of the Court of Appeals and general principles of negligence law and vicarious liability.

* See Vehicle and Traffic Law §1104 [a]-[c], [e]).

Click HERE to access the full text of the Court of Appeals' decision posted on the Internet.

 

Hearsay evidence is admissible in an administrative hearing

The Plaintiff [Petitioner] in this CPLR Article 78 action was accused of leaving a 22-month-old child alone and unsupervised, outside on a playground while acting in her capacity as a day care worker at a community family development day care center. The Dutchess County Department of Community and Family Services investigated the report and thereafter determined that the report of "maltreatment" was appropriate.

Petitioner made an application to the New York State Office of Children and Family Services [OCFS] to amend the indicated report of the State Central Register from "indicated" to "unfounded" and to seal the report. OCFS denied Petitioner's application. Petitioner then commenced  an Article 78 CPLR proceeding seeking judicial review OCFS' determination.

Citing Matter of Brown v Velez, 153 AD3d 517, the Appellate Division observed that at an administrative expungement hearing to determine whether a report of child abuse or maltreatment is substantiated, the allegations in the report must be established "by a preponderance of the evidence"*.

Further, opined the court, "Judicial review of a determination that a report of child maltreatment has been substantiated is limited to whether the determination is supported by substantial evidence in the record" noting that where substantial evidence exists, "the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently."

Concluding that the Petitioner was one of the individuals responsible for the child at the time of the incident is supported by substantial evidence in the record, the Appellate Division opined contrary to Petitioner's contention, "the fact that the [OCFS]  determination was based, in large part, on hearsay evidence, does not require a different conclusion. Hearsay is admissible in an administrative hearing and, in this case, was sufficiently relevant and probative to support the determination".

* The preponderance of the evidence test requires that each element of the proof advanced by the charging party's "is more likely true than not."

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