| Matter of Burch v Harper |
| 2008 NY Slip Op 06987 [54 AD3d 854] |
| September 16, 2008 |
| Appellate Division, Second Department |
| In the Matter of Chris Burch et al., Appellants, v Brian L.Harper, as Commissioner of the Suffolk County Department of Health Services, et al.,Respondents. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Leonard G. Kapsalis of counsel), forrespondents Brian L. Harper, as Commissioner of the Suffolk County Department of HealthServices, and County of Suffolk. Richard E. DePetris, Village Attorney, Southampton, N.Y., for respondent Village ofSouthampton. Devitt Spellman Barrett, LLP, Smithtown, N.Y. (Jeltje deJong and John M. Denby ofcounsel), for respondent Trustees of the Freeholders and Commonalty of the Town ofSouthampton.
In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compelthe respondent Brian L. Harper, as Commissioner of the Suffolk County Department of HealthServices, to determine that the respondents County of Suffolk, Village of Southampton, andTrustees of the Freeholders and Commonalty of the Town of Southampton are operating certainocean beaches as "bathing establishments" in violation of, among other things, the Public HealthLaw, and to direct him to prohibit the continued operation of those "bathing establishments," thepetitioners appeal from a judgment of the Supreme Court, Suffolk County (Jones, J.), enteredApril 26, 2007, which denied the petition and dismissed the proceeding.[*2]
Ordered that the judgment is affirmed, with one bill ofcosts to the respondents appearing separately and filing separate briefs.
In this CPLR article 78 proceeding, the petitioners seek, inter alia, to compel the respondentBrian L. Harper, as Commissioner of the Suffolk County Department of Health Services, todetermine that the respondents County of Suffolk, Village of Southampton, and Trustees of theFreeholders and Commonalty of the Town of Southampton are operating certain ocean beachesas "bathing establishments" in violation of, inter alia, the Public Health Law and to direct him toprohibit 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 ofSavastano v Prevost, 66 NY2d 47, 50 [1985]; see CPLR 7803 [1]; Matter ofLegal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]; Matter of Joy Bldrs., Inc. v Ballard, 20AD3d 534, 535 [2005]). Here, the allegations contained in the petition were insufficient todemonstrate that the respondents were operating a "bathing establishment" in violation of, interalia, the Public Health Law. Since the allegations contained in the petition failed to establish aclear legal right to the relief sought, the Supreme Court properly denied the petition anddismissed the proceeding. Santucci, J.P., Angiolillo, Eng and Chambers, JJ., concur.