Matter of Geller v. Veteran

10 Citing cases

  1. Matter of Geller v. Veteran

    39 N.Y.2d 708 (N.Y. 1976)

    Decided June 8, 1976 Appeal from (2d dept.: 49 A.D.2d 574) MOTIONS FOR LEAVE TO APPEAL

  2. Matter of Easton v. State of N.Y. Commmission

    201 A.D.2d 728 (N.Y. App. Div. 1994)

    In light of this decision and order, we find it appropriate to reverse the order appealed from herein, and to permit the CQC to disseminate its report. We further note that this matter was appropriately addressed in a proceeding pursuant to CPLR article 78, as mandamus is a proper remedy to compel an administrative agency to cease dissemination of a report whose factual findings conflict with those determined by a court after trial โ€” had the latter not been reversed on appeal (see, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7803:4, at 333; Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 231; Matter of Freidus v. Guggenheimer, 57 A.D.2d 760; see also, Matter of Geller v. Veteran, 49 A.D.2d 574; 24 Carmody-Wait 2d, NY Prac ยง 145:117). Bracken, J.P., Balletta, Pizzuto and Friedmann, JJ., concur.

  3. Boung Jae Jang v. Brown

    161 A.D.2d 49 (N.Y. App. Div. 1990)   Cited 21 times
    Holding that the New York State Supreme Court has the requisite authority based on "[the court's] inherent authority to interpret the Constitution, which the Police Department is sworn to uphold, New York City Charter ยง 435."

    The Court of Appeals has observed, however, that, "[w]hat has been somewhat lost from view is [the] function of mandamus to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so" (see, Klostermann v. Cuomo, supra, at 540; see also, Matter of Korn v Gulotta, 72 N.Y.2d 363, 370). As a legal remedy controlled by equitable principles (see, Matter of Andresen v. Rice, 277 N.Y. 271, 282; Matter of Geller v. Veteran, 49 A.D.2d 574), mandamus is essentially a judicial command to perform a ministerial act specifically required of a public or corporate officer or body by law, which, as we have held, may embody a ruling of limited application laid down in the form of a judicial determination (see, State Div. of Human Rights [Geraci] v. New York State Dept. of Correctional Servs., supra, at 65-66). As we have previously noted, the lawful mandate of the court directing that certain measures be undertaken by law enforcement personnel provides the requisite judicial determination from which the appellants' duty to act derives.

  4. Matter of N.Y. St. Comm. of Corr. v. Ruffo

    157 A.D.2d 987 (N.Y. App. Div. 1990)   Cited 6 times

    For this reason, it has been held that a judicial declaration of rights and obligations may be sufficient as a preliminary remedy, with the expectation of voluntary compliance by public officials once the substantive question of legal duty has been decided (see, Klostermann v. Cuomo, supra, at 538-539; Matter of Town of Mentz v. Department of Transp., 106 A.D.2d 870, 872). Moreover, even when a cause of action appropriate for mandamus relief has been established, whether mandamus should be granted is subject to equitable considerations, including feasibility and unnecessary hardship (see, Matter of Coombs v. Edwards, 280 N.Y. 361, 364-365; Matter of Warehousemen's Assn. v. Cosgrove, 241 N.Y. 580, 581; Matter of Geller v. Veteran, 49 A.D.2d 574, appeal dismissed 38 N.Y.2d 1003). Because the judgment appealed from arose out of a motion by respondents to convert the matter from a CPLR article 78 proceeding to an action, apparently enlarged by the parties to addressing the substantive issues appearing on the face of the pleadings, the parties have not had the opportunity to develop a record on whether full coercive relief should be granted under the particular circumstances and the considerations previously discussed.

  5. State Division of Human Rights v. New York State Department of Correctional Services

    90 A.D.2d 51 (N.Y. App. Div. 1982)   Cited 42 times
    Holding unless a right to possession of an office or position is established by mandamus, "other adjudication or stipulation, recovery of back pay is barred."

    As a legal remedy controlled by equitable principles (see Matter of Geller v. Veteran, 49 A.D.2d 574, app dsmd 38 N.Y.2d 1003), mandamus is essentially a judicial command to perform a ministerial act specifically required of a public or corporate officer or body by law (see Matter of Burdick v Hall, 232 App. Div. 387) in one of two senses: (1) a common-law, statutory or other rule of general application so enjoining the officer or board as invoked by a petitioner coming within its express terms (see People ex rel. Coffey v. Democratic Gen. Committee of Kings County, 164 N.Y. 335; Matter of Smith v Dillon, 267 App. Div. 39; People ex rel. Metropolitan Trust Co. v Travis, 191 App. Div. 129; Matter of Pfingst v. Levitt, 44 A.D.2d 157, mot for lv to app den 34 N.Y.2d 518; Henderson v. Sarle, 23 Misc.2d 334; Matter of Battipaglia v. Executive Committee of Democratic County Committee of County of Queens, 20 Misc.2d 226) ; or (2) a rule of limited application laid down in the form of a legislative, judicial, or administrative determination or a corporate charter or

  6. Wyoming v. Criminal Justice

    83 A.D.2d 25 (N.Y. App. Div. 1981)   Cited 6 times

    Finally, although mandamus is classified as a legal remedy, equitable principles are also considered to be controlling (Matter of Geller v. Veteran, 49 A.D.2d 574, mot for lv to app den 39 N.Y.2d 708). Under the circumstances revealed in the record of this proceeding and the need for prompt payment to ensure continued representation, Special Term did not abuse its discretion by issuing the order to compel respondents' approval.

  7. 1980 Fruit Farm, Inc. v. Town of Greenburgh

    59 A.D.2d 904 (N.Y. App. Div. 1977)

    Order reversed, on the law, with $50 costs and disbursements, and motion denied. The prior CPLR article 78 proceeding to compel the Town of Greenburgh to restore water and sewer service to property owned by one Geller and leased by 1980 Fruit Farm, Inc. (Matter of Geller v Veteran, 49 A.D.2d 574) did not finally determine the issue of the town's liability for damages occasioned by the discontinuance of such service. Geller owns contiguous parcels within the town and the City of Yonkers. The property leased by 1980 Fruit Farm, Inc., is located on that part of Geller's property which is within the city.

  8. Matter of Parkview Holding Corp. v. Joy

    58 A.D.2d 865 (N.Y. App. Div. 1977)   Cited 2 times

    Our February 3, 1975 order was intended to correct a wrong which was committed between November, 1973 and June, 1974. The delay which resulted because the issue was before the courts should not deprive petitioners of the application of the appropriate rent reduction schedule. "Although mandamus relief is classed as a legal remedy, equitable principles largely control its issuance" (Matter of Geller v Veteran, 49 A.D.2d 574). Since equity regards as done that which should have been done (Crippen v Spies, 255 App. Div. 411, 415; 20 N.Y. Jur, Equity, ยง 85), respondent cannot now, after a year's delay, apply a rent reduction schedule which reflects the value of services as of March, 1975. Accordingly, the case is remanded to Special Term to determine which date or time period the revised schedule was promulgated to reflect. If the revised schedule is based upon a date subsequent to June, 1974, respondent's March 27, 1975 determination of petitioners' applications should be annulled and respondent should be directed to act upon petitioners' applications pursuant to a rent reduction schedule which reflects the value of the service supplied as of June 10, 1974, the date that petitioners sought judicial relief. If, however, the schedule was revised to reflect the rental value of the cost of electricity between November, 1973 and June, 1974, respondent's determination was proper. It should be noted that responde

  9. Matter of Geller v. O'Neill

    57 A.D.2d 865 (N.Y. App. Div. 1977)

    The circumstances of this case are indeed unusual. Petitioner's property consists of two contiguous parcels bisected by the boundary line between the Town of Greenburgh and the City of Yonkers. This court, by an earlier decision (Matter of Geller v Veteran, 49 A.D.2d 574), has already found that the town officials had authorized a sewer hook-in to petitioner's building in Yonkers, and we did not allow service to be disconnected. By letter dated August 12, 1975, the town board notified petitioner that a fee of $229,000 was to be levied, based on the excessive water consumption on the premises. Since the hearing on the issue of a reasonable sewer hook-in fee, appellants have decreased their demand to $32,500, based upon a drastic reduction in water consumption.

  10. Krauskopf v. Perales

    146 Misc. 2d 619 (N.Y. Sup. Ct. 1990)

    This insistence might not itself be fatal to the State's position, but the State goes on to contend that the proper purpose of the audit was not to determine whether individuals were in fact State charges but simply to determine whether the city had complied with the record-keeping requirements of section 310.1 (g), a record keeping which it sees founded on correspondence with out-of-State sources. This is a surprising contention to encounter in a CPLR article 78 proceeding, which must be largely controlled by equitable principles (see, Matter of Geller v Veteran, 49 A.D.2d 574 [2d Dept]); it is most damaging where, as here, the State has misconstrued the requirement of section 310.1 (g). It tends to support the city's charges that the audit was prompted by the State's fiscal needs rather than the city's defective documentation and that the State is seeking to defeat the purpose of section 62 (3) of the Social Services Law.