IN RE: Emidio BUONO (2024)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent NYC Department of Buildings to reissue the petitioner Emidio Buono a master plumber license and to compel the respondent Office of Administrative Trials and Hearings to reschedule and conduct certain hearings, the petitioners appeal from an order and judgment (one paper) of the Supreme Court, Richmond County (Lizette Colon, J.), dated May 5, 2021.  The order and judgment, in effect, granted the respondents’ motion pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, denied the petition, and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, with costs.

The petitioners, Emidio Buono, a licensed plumber, and Domestic Plumbing Corp., a corporation owned by Buono, commenced this proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent NYC Department of Buildings (hereinafter DOB) to reissue a master plumber license to Buono in his name only and to compel the respondent Office of Administrative Trials and Hearings (hereinafter OATH) to reschedule and conduct hearings regarding certain summonses issued by DOB for failure to maintain required insurance.  Prior to answering the petition, the respondents moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition.  In an order and judgment dated May 5, 2021, the Supreme Court, in effect, granted the respondents’ motion, denied the petition, and dismissed the proceeding.  The petitioners appeal.

Contrary to the petitioners’ contention, the Supreme Court did not err in reaching the merits of the petition before the respondents interposed an answer.  CPLR article 78 proceedings are summary in nature (see id. § 409[b];  Matter of Reyes v. Suffolk County Traffic & Parking Violations Agency, 221 A.D.3d 824, 825, 198 N.Y.S.3d 212;  Matter of 1300 Franklin Ave. Members, LLC v. Board of Trustees of Inc. Vil. of Garden City, 62 A.D.3d 1004, 1006, 880 N.Y.S.2d 133).  “Although the respondents did not file an answer, where, as here, ‘it is clear that no dispute as to the facts exists and no prejudice will result, the court can, upon a respondent's motion to dismiss, decide the petition on the merits’ ” (Matter of Reyes v. Suffolk County Traffic & Parking Violations Agency, 221 A.D.3d at 825, 198 N.Y.S.3d 212, quoting Matter of Arash Real Estate & Mgt. Co. v. New York City Dept. of Consumer Affairs, 148 A.D.3d 1137, 1138, 52 N.Y.S.3d 102 [internal quotation marks omitted];  see CPLR 7804[f];  Matter of Wagschal v. Szegedin, 215 A.D.3d 755, 757, 188 N.Y.S.3d 84).

“[M]andamus is an extraordinary remedy that, by definition, is available only in limited circumstances” (Matter of Rosado–Ciriello v. Board of Educ. of the Yonkers City Sch. Dist., 219 A.D.3d 839, 841, 195 N.Y.S.3d 269 [internal quotation marks omitted]).  “The remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought” (id. [internal quotation marks omitted]).  While the remedy of mandamus “ ‘is available to compel a governmental entity or officer to perform a ministerial duty, [it] does not lie to compel an act which involves an exercise of judgment or discretion.  A discretionary act involve[s] 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’ ” (id., quoting Matter of Mensch v. Planning Bd. of the Vil. of Warwick, 189 A.D.3d 1245, 1247–1248, 138 N.Y.S.3d 621).  Here, the respondents established that the petitioners did not have a clear legal right to the relief sought, that is, the reissuing of a master plumber license to Buono in his name only by DOB and the rescheduling and conducting of hearings regarding certain summonses issued by DOB for failure to maintain required insurance.  Instead, the petitioners sought to compel conduct involving the application of the discretion and judgment of the respondents.  Therefore, the remedy of mandamus is not available.  Moreover, with regard to the petitioners’ request to compel OATH to reschedule and conduct certain hearings, they failed to allege that they had exhausted their administrative remedies before commencing this proceeding, nor have they demonstrated that resort to such remedies would be futile (see Rules of City of N.Y. Off of Admin Trials & Hearings [48 RCNY] §§ 6–20, 6–21;  Matter of Rosado–Ciriello v. Board of Educ. of the Yonkers City School District, 219 A.D.3d at 841, 195 N.Y.S.3d 269;  Matter of Baywood, LLC v. Office of the Medicaid Inspector Gen., 188 A.D.3d 1193, 1195, 137 N.Y.S.3d 125).

Further, the petitioners’ contention that their equal protection rights were violated based on the issuance of multiple summonses by DOB against the petitioners regarding failure to maintain required insurance is without merit.  The petition failed to identify any similarly situated individual or group treated differently from the petitioners, nor did the petition make the requisite showing that the respondents’ actions were based on intent to injure the petitioners (see Bower Assoc. v. Town of Pleasant Val., 2 N.Y.3d 617, 631–632, 781 N.Y.S.2d 240, 814 N.E.2d 410;  Weslowski v. Zugibe, 167 A.D.3d 972, 975, 91 N.Y.S.3d 114;  Boring v. Town of Babylon, 147 A.D.3d 892, 893, 47 N.Y.S.3d 419).

The petitioners’ remaining contention is without merit.

Accordingly, the Supreme Court properly, in effect, granted the respondents’ motion to dismiss the petition, denied the petition, and dismissed the proceeding.

CONNOLLY, J.P., MALTESE, CHRISTOPHER and LANDICINO, JJ., concur.