Since the proper vehicle to challenge the resolution is a declaratory judgment action, the Supreme Court properly dismissed that branch of the petition which sought relief pursuant to CPLR article 78 in the nature of mandamus against DHCR. The remedy of mandamus is available "to compel the performance of a ministerial, nondiscretionary act where there is a clear legal right to the relief sought" ( Matter of Savastano v Prevost, 66 NY2d 47, 50; see CPLR 7803; Matter of Burch v Harper, 54 AD3d 854, 855; Matter of Joy Bldrs., Inc. v Ballard, 20 AD3d 534). Moreover, the act sought to be compelled must be based upon a "specific statutory authority mandating performance in a specified manner" ( Matter of Peirez v Caso, 72 AD2d 797).
The petitioners correctly contend that this proceeding is in the nature of mandamus to compel, as opposed to certiorari to review. "[M]andamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought" ( Klostermann v Cuomo, 61 NY2d 525, 539, quoting Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16; see Matter of Joy Bldrs., Inc. v Ballard, 20 AD3d 534, 535). Here, the City had previously determined that the petitioners were entitled to supplemental disability allowances pursuant to General Municipal Law § 207-a (2), but allegedly failed properly to carry out the ministerial act of fully implementing the payment of such allowances.
In this CPLR article 78 proceeding, the petitioners seek, inter alia, to compel the respondent Brian L. Harper, as Commissioner of the Suffolk County Department of Health Services, to determine that the respondents County of Suffolk, Village of Southampton, and Trustees of the Freeholders and Commonalty of the Town of Southampton are operating certain ocean beaches as "bathing establishments" in violation of, inter alia, the Public Health Law and to direct him to prohibit the continued operation of those "bathing establishments." The remedy of mandamus is available "to compel the performance of a ministerial, nondiscretionary act where there is a clear legal right to the relief sought" ( Matter of Savastano v Prevost, 66 NY2d 47, 50; see CPLR 7803; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16; Matter of Joy Bldrs., Inc. v Ballard, 20 AD3d 534, 535). Here, the allegations contained in the petition were insufficient to demonstrate that the respondents were operating a "bathing establishment" in violation of, inter alia, the Public Health Law.
Even assuming arguendo that the filing of such written application was prevented by the Respondent TOWN, the Petitioner has failed to show that it had a clear legal right to a parade permit and that the Respondent(s) failed to perform a ministerial nondiscretionary act. See Joy Builders, Inc. v. Ballard, 20 AD3d 534 (2nd Dept.2005). Thus, the drastic remedy of mandamus does not lie.
A mandamus is available to compel the performance of a ministerial, nondiscretionary act where there is a clear legal right to the relief sought. See CPLR 7803; Matter of Anonymous v. Commissioner of Health, etal. , 21 AD3d 841 (1st Dept. 2005); Joy Builders, Inc. v. Ballard, 20 AD3d 534 (2nd Dept. 2005). Mandamus is an appropriate vehicle by which to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so.
Respondent has argued that this Court cannot order it to issue Petitioners a special use permit and site plan approval, because it cannot order a municipality to undertake a discretionary act. In fact, as adroitly pointed out by Petitioners' Counsel, the cases cited by Respondent are entirely consistent with the principle that, where there is a legal right that is not subject to a discretionary administration determination, there is no dispute that the Court possesses the authority to order a municipality to undertake the ministerial act required to effectuate the legal right, such as issuance of a permit ( see:Legal AidSociety of Sullivan County Inc v Scheinman, 53 NY2d 12; Altimore vBarrios-Pauli, 90 NY2d 378; Klostermann v Cuomo, 61 NY2d 525; Kiriloff v AGW Wetwash Laundry, 282 NY 466; Vleck v Parry, 270 NY 371; Joy Builders Inc v Ballard, 20 AD3d 534 {2 Dept 2005]; Morrison v NYS Div of Housing and CommunityRenewal, 241 AD2d 34 [1 Dept 1998]; Kaplan v Lipkins, 19 AD2d 723 [2 Dept 1963]). In the instant matter, Respondent has fully exhausted all of its discretion, as well as all reasonable patience.
Respondent has argued that this Court cannot order it to issue Petitioners a special use permit and site plan approval, because it cannot order a municipality to undertake a discretionary act. In fact, as adroitly pointed out by Petitioners' Counsel, the cases cited by Respondent are entirely consistent with the principle that, where there is a legal right that is not subject to a discretionary administration determination, there is no dispute that the Court possesses the authority to order a municipality to undertake the ministerial act required to effectuate the legal right, such as issuance of a permit ( see:Legal AidSociety of Sullivan County Inc v Scheinman, 53 NY2d 12; Altimore vBarrios-Pauli, 90 NY2d 378; Klostermann v Cuomo, 61 NY2d 525; Kiriloff v AGW Wetwash Laundry, 282 NY 466; Vleck v Parry, 270 NY 371; Joy Builders Inc v Ballard, 20 AD3d 534 {2 Dept 2005]; Morrison v NYS Div of Housing and Community Renewal, 241 AD2d 34 [1 Dept 1998]; Kaplan v Lipkins, 19 AD2d 723 [2 Dept 1963]). In the instant matter, Respondent has fully exhausted all of its discretion, as well as all reasonable patience.
Moreover, pursuant to Mental Hygiene Law § 41.34 (C) a sponsoring agency is entitled to establish a proposed facility upon the failure of a municipality to submit a formal response within 40 days of receipt of the notice of intent to develop the community residence (see, Polo Park Civic Asso. v. Kiernan, 133 AD2d 116; Town of Stony Point v. N.Y. State Office Of Mental Retardation Developmental Disabilities, 78 AD2d 858). The Appellate Division, Second Department, in Joy Builders, Inc. v. Ballard, 20 AD3d 534, stated: "[t]he remedy of mandamus is available 'to compel the performance of a ministerial, nondiscretionary act where there is a clear legal right to the relief sought' (Matter of Savastano v. Pervost, 66 NY2d 47, 50, 485 NE2d 213, 495 NYS2d 6; see CPLR § 7803; Matter of Legal Aid Soc. of Sullivan County v. Scheinman, 53 NY2d 882) Mandamus, however, 'will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion'
Mental Hygiene Law § 41.34 (C) provides that a sponsoring agency is entitled to establish a proposed facility upon the failure of a municipality to submit a formal response within 40 days of receipt of the notice of intent to develop the community residence (see, Polo Park Civic Asso. v. Kiernan, 133 AD2d 116; Town of Stony Point v. N.Y. State Office Of Mental Retardation Developmental Disabilities, supra). The Appellate Division, Second Department, in Joy Builders, Inc., v. Ballard, 20 AD3d 534 stated: "[t]he remedy of mandamus is available 'to compel the performance of a ministerial, nondiscretionary act where there is a clear legal right to the relief sought' (Matter of Savastano v. Pervost, 66 NY2d 47, 50. 485 NE2d 213, 495 NYS2d 6 [1985; see CPLR § 7803; Matter of Legal Aid Soc. Of Sullivan County v. Scheinman, 53 NY2d 882) Mandamus, however, 'will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion'