Seeking a court order in the nature of mandamus to compel a public officer or agency to perform a specified act

Among the several ancient writs which haves survived through the eons is the Writ of Mandamus.* Mandamus is sought in an effort to compel a governmental entity or officer to perform a ministerial duty.

In contrast, the Writ cannot be used to compel an act that involve[s] an exercise of judgment or discretion on the part of the public officer or entity. Citing Matter of Mensch v Planning Bd. of the Vil. of Warwick, 189 AD3d 1245, the Appellate Division explained that 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".

In this action the Appellate Division held that the Petitioners seeking a court order in the nature of mandamus "failed to establish that there existed a clear legal right to the relief sought." Rather, opined the court, Petitioners "sought to compel conduct involving the application of the discretion and judgment of the [Employer]."

Accordingly, the Appellate Division concluded that the remedy of mandamus was not available to the Petitioners.

* Other surviving 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].

GOVTECH TODAY Newsletter item

On August 28, 2023 GOVTECH TODAY posted the item listed below on the Internet. Click on the text in color to access the report.

"Bringing live translation to public meetings".

 

From the Blogs: The Art of Filing an Appeal

Addresses the critical components of a compelling appeal, from gathering evidence to structuring your arguments. "Tips and best practices to make your appeal stand out." 

Posted on the Internet by the Law Firm of Kevin P. Sheerin, Esq.

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School bus transportation contractor sues for payment for contract services the school district claimed were not required for a four month period

We Transport, Inc. [Plaintiff] commenced this action against the Westbury Union Free School District [Westbury] seeking to recover damages for an alleged breach of contract.

Plaintiff, a school bus transportation contractor for Westbury, alleged Westbury breached a contract between the parties by refusing to pay for transportation services that the Plaintiff alleged it stood ready to provide during the months of March, April, May, and June of the 2020 but which services were neither required by the school district nor provided to it by Plaintiff.

Westbury moved to dismiss the complaint. Supreme Court denied Westbury's motion and Westbury appealed the court's ruling.

Citing Shah v Exxis, Inc., 138 AD3d 970, the Appellate Division explained that "[on] a motion pursuant to CPLR §3211(a)(7) to dismiss [an action] for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory".

The Appellate Division then ruled that Supreme Court should have granted that branch of the Westbury's motion to dismiss the cause of action alleging breach of contract, noting that the essential elements of a breach of contract cause of action are: [1] the existence of a contract; [2] the plaintiff's performance under the contract; [3] the defendant's breach of that contract; and [4] resulting damages.

The Appellate Division opined that to state a cause of action to recover damages for a breach of contract, the plaintiff's allegations must identify the provision of the contract that it contends was breached.

Finding Plaintiff's complaint "failed to specify the provision of the parties' contract that was allegedly breached" and no provision was identified that would permit the Plaintiff to recover payment from Westbury in exchange for "being available to provide transportation services", the Appellate Division reversed the Supreme Court's order "insofar as appealed from" and granted Westbury's motion pursuant to CPLR §3211(a)(7) to dismiss Plaintiff's complaint.

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

 

New York City's failure to pay for certain pre-shift and post-shift work it required certain of its employees to perform held a willful violation of the federal Fair Labor Standards Act

In Perry, et al, v The City of New York, et al, Docket No. 21-2095, decided August 25, 2023, the United States Court of Appeals for the Second Circuit, said:

"In this collective action, a group of 2,519 EMTs and paramedics allege that their employer, the City of New York, willfully violated the Fair Labor Standards Act by requiring them to perform work before and after their shifts without paying them for that work unless the plaintiffs specifically requested overtime compensation from the City.

"A jury agreed following a twelve-day trial, and the U.S. District Court for the Southern District of New York (Broderick, J.) entered a $17.78 million judgment against the City.

"The City now appeals, raising four arguments:

"(1) the jury’s liability verdict cannot stand because plaintiffs failed to request overtime pay for the work at issue;

"(2) the jury’s willfulness finding was not supported by the evidence;

"(3) due to an erroneous instruction, the jury failed to make a necessary factual finding regarding the calculation of damages; and

"(4) the district court incorrectly forbade the jury from considering whether one component of the plaintiffs’ post-shift work was de minimis and therefore non-compensable.

'The City accordingly asks that we reverse the jury’s verdict or remand for a new trial on damages."

The Second Circuit declined to do so and instead affirmed the district court's decision "in toto."

Click HERE to access the text of the Second Circuit's decision posted on the Internet.