Citation Numbers: 32 A.D.2d 958
Filed Date: 7/14/1969
Status: Precedential
Modified Date: 1/12/2022
In a proceeding pursuant to article 78 of the CPLR to compel respondent to pay petitioners certain moneys, petitioners appeal from a judgment of the Supreme Court, Westchester County, dated December 10, 1968, which, inter alia, dismissed the petition. Judgment modified, on the law, by striking out all the decretal provisions .thereof except the words “ Ordered that the respondent’s cross-motion is denied ”; and proceeding remanded to the Special Term for the entry of an order, pursuant to CPLR 103 (subd. [c]), allowing the proper prosecution of the ease. As so modified, judgment affirmed, without costs. No questions of fact have been considered. The petitioners are general contractors who are seeking to recover moneys, certified by the respondent board’s architect as due and owing, with respect to additional work performed on a school improvement, pursuant to a contract between the parties. As long ago as April 6, 1967, the petitioners-appellants were informed in the decision on their first CPLR article 78 proceeding that that remedy was unavailable and inappropriate. They have persisted in this second CPLR article 78 proceeding. Mandamus relief, pursuant to CPLR article 78, may not be used when there are other available remedies at law as, for example, an action to recover damages for breach of contract (Matter of Lyon Co. v. Morris, 261 N. Y. 497; see, also, People ex rel. Richards v. Hylan, 200 App. Div. 871; Matter of colcagnini v. Burns, 216 N. Y. S. 2d 465). Moreover, the respondent Board is not being charged with the violation of a statutory duty (see Matter of Phalen v. Theatrical Protective Union No. 1, 27 A D 2d 909, revd. 22 N Y 2d 34). In Phalen the Court of Appeals agreed that the extraordinary remedy of mandamus pursuant to CPLR article 78 was unavailable in that case, which involved a union’s unfair and discriminatory practices; nevertheless, the Court of Appeals reversed the order that had dismissed the proceeding. In the portion of the majority opinion, pertinent herein, the Court of Appeals said: “ Our determination that petitioners have prosecuted their action in an improper form and requested relief to which they are not entitled does not, however, serve to put them out of court. The improper form in which their action has been brought and their failure to request the appropriate relief is not a bar to their receiving whatever relief they may be entitled to. CPLR 103 (subd. [e]) provides that once a court has obtained jurisdiction over the parties in a ' civil judicial proceeding ’ the proceeding 'shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution’s and CPLR 105 (subd. [d]), which defines ' civil judicial proceeding j is clearly broad enough to include the instant proceeding, defining a ‘ civil