MATTER OF KUSKY v. TOWN OF ISLIP, N.Y. App. Div., Judgment, Law, casemine.com

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Attorney(S)

Siben Siben, LLP (Maxwell D. Weinstein, South Huntington, N.Y., of counsel), for appellant. Ernest J. Cannava, Town Attorney, Islip, N.Y., for respondent Town of Islip (no brief filed). Smith, Finkelstein, Lundberg, Isler Yakaboski, LLP, Riverhead, N Y (Frank A. Isler of counsel), for respondent Seaview Association of Fire Island N.Y., Inc. Robert J. Cimino, County Attorney, Hauppauge, N.Y. (Kelly A. Reape of counsel), for respondent County of Suffolk (no brief filed).

Judges

Robert J. Miller

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Smart Summary

Factual and Procedural Background

The appellant, Gary Kusky, initiated a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondents, including the Town of Islip and others, to comply with provisions of the Public Health Law and State Sanitary Code requiring public toilet facilities at the ocean beach at Seaview. Previously, this court determined that the beach fell under Public Health Law § 1340(2)(a), mandating installation of public toilets, and rejected attempts by Seaview to obtain an exemption. Subsequently, a unisex toilet facility was installed, and Seaview received a bathing permit for the 1998 season. Kusky then moved to compel compliance with statutory and code requirements for public beach toilet facilities. The Supreme Court dismissed the proceeding as academic, finding that the relief sought had already been provided, and that review of the bathing permit issuance was not properly raised in this mandamus proceeding but required a separate action. The appellant appealed this dismissal.

Legal Issues Presented

Whether mandamus is an appropriate remedy to compel the respondents to construct public toilet facilities in a manner deemed "adequate" by the petitioner under the Public Health Law and State Sanitary Code.
Whether the issuance of a bathing permit by the Suffolk County Department of Health Services can be reviewed in the context of this mandamus proceeding.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Bullion v. Safir, 249 A.D.2d 386	Mandamus lies only to compel performance of a ministerial act when a clear legal right exists.	Supported the principle that mandamus will not lie if discretion is involved.
Klostermann v. Cuomo, 61 N.Y.2d 525, 539	Mandamus will not compel acts involving administrative discretion.	Reinforced that mandamus is inappropriate where an agency exercises judgment.
Matter of Hamptons Hosp. Med. Center v. Moore, 52 N.Y.2d 88, 96	Mandamus cannot be used to compel discretionary administrative acts.	Supported the court's refusal to compel specific construction of facilities.
Matter of Galvin Morgan McCall, 251 A.D.2d 869	Mandamus may not compel construction of facilities according to a petitioner’s subjective standard of adequacy.	Applied to deny mandamus relief to compel construction in the manner the petitioner preferred.

Court's Reasoning and Analysis

The court affirmed the dismissal of the mandamus proceeding, reasoning that the petitioner had already obtained the relief sought by the installation of a unisex toilet facility and issuance of a bathing permit. The court emphasized that mandamus is an extraordinary remedy available only to compel ministerial acts where a clear legal right exists, and is not appropriate to direct actions involving administrative discretion. The Department of Health Services has discretion to determine the adequacy of toilet facilities under the Public Health Law and State Sanitary Code, and mandamus cannot be used to override that discretion or compel construction according to the petitioner’s subjective view of adequacy. Additionally, challenges to the issuance of the bathing permit must be pursued in a separate proceeding, not within this mandamus action.

Holding and Implications

The judgment of the Supreme Court, Suffolk County, dismissing the mandamus proceeding, is affirmed with costs payable to the respondent Seaview Association of Fire Island N.Y., Inc.

The direct effect of this decision is that the petitioner cannot compel the respondents to construct public toilet facilities in a manner subjectively deemed adequate, nor challenge the issuance of the bathing permit in this mandamus proceeding. The ruling clarifies that mandamus is limited to compelling ministerial acts and does not extend to acts involving agency discretion. No new legal precedent beyond the application of established principles was set.

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In the Matter of GARY KUSKY, appellant, v. TOWN OF ISLIP, et al., respondents.

DECISION ORDER

ORDERED that the judgment is affirmed, with costs payable to the respondent Seaview Association of Fire Island N.Y., Inc.

In Matter of Kusky v. Town of Islip ( 191 A.D.2d 633), this court determined that the ocean beach at Seaview was subject to the provisions of Public Health Law § 1340(2)(a), which mandates the installation of public toilets at bathing establishments. The matter was remitted to the Supreme Court, Suffolk County, for proceedings to determine, inter alia, the nature and location of the facilities. Then, in Matter of Kusky v. Town of Islip ( 219 A.D.2d 603), we determined that it was improper for Seaview to seek an exemption from providing the public toilets. Although no further proceedings were held, a unisex toilet facility was provided at the beach and Seaview obtained, from the Suffolk County Department of Health Services, a bathing permit for the 1998 season. The petitioner moved to compel compliance with the statutory and code requirements for public beach toilet facilities. The Supreme Court denied the motion as academic because the petitioner had already received the relief sought; that is, Seaview had already been compelled to provide public toilet facilities. The Supreme Court further found that review of the issuance of the beach permit was not properly raised in the context of the instant proceeding for mandamus to compel. Rather, a separate proceeding to review the permit's issuance was required. We agree.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought ( see, Matter of Bullion v. Safir, 249 A.D.2d 386). Mandamus will not be awarded to compel an act with respect to which an administrative agency may exercise judgment or discretion ( see, Klostermann v. Cuomo, 61 N.Y.2d 525, 539; Matter of Hamptons Hosp. Med. Center v. Moore, 52 N.Y.2d 88, 96).

10 NYCRR 6-2.13, as recently amended, requires "adequate toilet and handwashing facilities * * * for all bathing beaches". The determination of whether such facilities are "adequate", is an exercise of judgment by the Department of Health Services which, under Public Health Law § 1340(2)(a), must approve of their construction at bathing establishments falling within the mandate. Thus, mandamus may not be utilized to compel the respondents to construct the toilet facilities in the manner in which the petitioner deems "adequate" ( see, Matter of Galvin Morgan McCall, 251 A.D.2d 869).

The petitioner's remaining contention is without merit.

BRACKEN, J.P., S. MILLER, THOMPSON, and FRIEDMANN, JJ., concur.

MATTER OF KUSKY v. TOWN OF ISLIP