The following papers numbered 1 to 12 read on this Article 78 proceeding by self represented petitioners Amelia Arcamone-Makinano and Bonifacio Makinano for a judgment (1) ordering that the original petition be withdrawn in lieu of the amended petition; (2) directing respondents New York City Department of Buildings and Ira Gluckman, Commissioner, to revoke the current temporary certificate of occupancy issued for the building located at 82-20 Britton Avenue, Elmhurst, New York, and (3) barring the respondents from issuing a temporary certificate of occupancy for said premises pending owner authorization to perform construction at said premises; (4) barring respondents from issuing a permanent Certificate of Occupancy for said premises and (5) awarding petitioners costs and disbursements. Respondents cross move for an order dismissing the petition on the grounds of collateral estoppel, failure to exhaust administrative remedies, statute of limitations, that the claim as to a final Certificate of Occupancy is not ripe for judicial review, and failure to state a cause of action for mandamus relief, pursuant to CPLR 3211(a)(5), (7) and 7804(f). [*2]

Papers

Numbered

Amended Notice of Petition-Amended Verified

Petition-Exhibits1-4

Notice of Cross Motion- Affirmation-Exhibits5-7Reply Affirmation-Exhibits8-10

Reply Affirmation11-12

Upon the foregoing papers the petition and cross motion are determined as follows:

Petitioners Amelia Arcamone-Makinano and Bonifacio Makinano are the owners of real property known as 82-22 Britton Avenue Elmhurst, New York. Petitioners' property is adjacent to the real property known as at 82-20 Britton Avneue, Elmhurst, New York and owned by Britton Property Inc. During the construction of a new six story multi-unit building on the real property owned by Britton Property Inc., I-beams were installed on a portion of the Makinanos' property.

In an action entitled Amelia Arcamone-Makinano and Bonifacio Makinano v Britton Property Inc., et. al. (Index No. 32984/2009), the plaintiffs therein asserted causes of action for injunctive relief, for an order of ejectment, to recover damages for diminution of the value of their property and for trespass. A non-jury trial was conducted by the Hon. Valerie Brathwaite Nelson, and the court granted a motion to dismiss the third cause of action to recover damages for diminution of the value of their property, due to the absence of supporting evidence. In a decision and order dated August 6, 2012, Justice Brathwaite Nelson determined that the I-beams were installed on the Makinanos' property without their consent, and granted judgment in favor of the Makinanos on the fourth cause of action for trespass. Justice Brathwaite Nelson denied the claim for actual damages due to the absence of evidence of actual damages, and awarded nominal damages of $1.00. The court therein further denied that branch of the first cause of action which sought a permanent injunction directing the Britton Property to remove the encroaching I-beams; determined that the request to remove a fence was moot; and denied and dismissed the Makinanos' request to enjoin Britton Property from making any applications to the DOB for a certificate of occupancy, or for the renewal of permits for the construction of the building on Britton's property. The court therein granted a permanent injunction, enjoining Britton Property from further trespassing, fencing, or otherwise engaging in acts on the Makinanos' property.

On November 12, 2010, while the above mentioned action was pending, Britton Property commenced an Article 78 proceeding to compel the New York City Department of Buildings (DOB) and Ira Gluckman, Commissioner (Index No 29250/2010) to issue a certificate of occupancy for the subject premises. The court therein, in an order dated March 10, 2011, dismissed said proceeding on the grounds that the property owner had failed to exhaust its administrative remedies. The property owner thereafter appealed the matter to the Board of Standards and Appeals (BSA) who determined that the DOB had improperly revoked a work [*3]permit; reinstated the work permit; and declined to issue a decision with respect to the issuance of a Certificate of Occupancy.

The DOB issued a temporary Certificate of Occupancy for the building located at 82-20 Britton Avenue which was in effect from June 20, 2012 through September 18, 2012. A second temporary Certificate of Occupancy was issued for said premises which was in effect from September 17, 2012 through November 1, 2012. A third temporary Certificate of Occupancy was issued for said premises which was in effect on October 22, 2012 and expired on January 20, 2013.

Petitioners commenced the within Article 78 proceeding on July 5, 2012, and sought a judgment directing the respondents to revoke the temporary Certificate of Occupancy for the building known as 82-20 Britton Avenue, Elmhurst, New York which expired on September 18, 2012, and awarding petitioners costs and disbursements incurred in the within proceeding.Petitioners and counsel for respondents entered into a stipulation dated October 11, 2012, whereby petitioners agreed to withdraw their motion to amend the petition, to serve an amended petition on respondents on or before October 18, 2012; to permit respondents to serve answering papers or otherwise responsive papers on or before November 2, 2012; and to make the amended petition returnable on November 15, 2012. The original petition had a return date of August 29, 2012 and the proceeding was adjourned twice and appeared on the calendar of November 15, 2012, at which time the original petition and respondents' original cross motion were withdrawn.

An Article 78 proceeding is a special proceeding (CPLR 7804 [a]), and neither the provisions of CPLR Article 4 nor Article 78 permit a party to amend a petition as of right. Here, as it is apparent that the petitioners did not intend to abandon this proceeding and as the parties agreed to the service of amended petition, petitioners' request to substitute the amended petition for the original petition, is granted.

Petitioners' claim that DOB may not issue temporary or final Certificates of Occupancy, absent their authorization appears to be based upon statements made by the DOB before the BSA to the effect that it would not issue such Certificates of Occupancy while the parties seek a judicial determination of their rights. This claim is barred by the doctrine of collateral estoppel. Collateral estoppel, or issue preclusion, "precludes a party from relitigating in a subsequent action . . . an issue clearly raised in a prior action . . . and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Telephone Co., 62 NY2d 494 [1984]; see also Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]; Kedik v Kedik, 86 AD3d 766, 767[2011]; Matter of Frontier Ins. Co., 73 AD3d 36, 41 [2010]). Moreover, as a general rule, future litigation between parties arising from the same transaction is precluded following a valid final judgment in previous actions, even if a new action is based upon different theories or seeks a different remedy (see Matter of Josey v Goord, 9 NY3d 386, 389-390 [2007]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). Collateral estoppel requires that the party to be precluded from relitigating the issue "had a full and fair opportunity to contest the prior issue" (Ryan, supra, 62 [*4]NY2d at 501).

Petitioners, in their action against Britton Property raised and fully litigated the issue of the presence of the I-beams on their property. The court therein awarded the Makinanos nominal damages on their claim for trespass, and specifically denied and dismissed their cause of action for injunctive relief which sought the removal of the I-beams and to enjoin Britton Property from applying for a Certificate of Occupancy. The court notes that although petitioners filed a notice of appeal of the order of preclusion made at trial and from a portion the August 6, 2012 decision and judgment, there is no evidence that petitioners perfected their appeal, that any such appeal is presently pending, or that the judgment of August 6, 2012 has been stayed. Thus, as petitioners claims of trespass have been concluded, they are collaterally estopped from relitigating these issues in the within proceeding.

New York City Charter § 645 (b) (3) gives the DOB authority to issue certificates of occupancy. Section 28-103.18 of the New York City Administrative Code provides a mechanism for petitioners to file a complaint with the DOB. Once issued, certificates of occupancy shall remain binding until vacated or modified by the BSA or a court "upon the application of the agency, department, commission, officer or member thereof seeking to make or issue such order, direction or requirement." (New York City Charter § 645 [b][3][e]). The Commissioner of the DOB is specifically authorized to make a written request to the BSA or a court of competent jurisdiction to "revoke, vacate, or modify a certificate of occupancy issued under the provisions of this code whenever the certificate is issued in error, or on the basis of incorrect information provided to the department" (NYC Administrative Code § 28-118.17 ). Petitioners herein did not file a complaint with the DOB with respect to any of the temporary Certificates of Occupancy, and thus failed to exhaust their administrative remedies.

To the extent that petitioners seek judicial review of the BSA's determination, the within proceeding was originally commenced more than 30 days after the BSA filed its determination of May 4, 2012, and therefore is untimely (Administrative Code of the City of New York §25-207; New York City Charter §669[d]).

To the extent that the petition seeks relief with respect to the Certificate of Occupancy which expired on November 1, 2012, this claim is now moot. Petitioners' claims with respect to the issuance of future temporary or final Certificates of Occupancy are premature. In the event that the DOB issues further temporary Certificates of Occupancy or a final Certificate of Occupancy, petitioners may pursue their administrative remedies.

Finally, petitioners' request for a judgment in the nature of mandamus, compelling the respondents not to issue a Certificate of Occupancy for the building constructed on the adjoining property is denied. A proceeding seeking mandamus to compel (CPLR 7803 [1]) seeks an order commanding an officer or body to perform a specified ministerial act required by law to be performed (Hamptons Hosp. & Med. Ctr., Inc. v Moore, 52 NY2d 88 [1981]). Mandamus is not appropriate to compel an officer or tribunal to reach a particular outcome with respect to a [*5]decision that turns on the exercise of discretion or judgment (Klostermann v Cuomo, 61 NY2d 525, 539-540 [1984]). The petitioner must show a "clear legal right" to the relief and if there is "reasonable doubt or controversy" as to whether the right to performance exists, the petition must be denied (Matter of Assn. of Surrogate and Supreme Court Reporters within the City of NY v Bartlett, 40 NY2d 571, 574 [1976]). Petitioners have failed to establish a clear right to relief, as the issuance of a temporary or final Certificate of Occupancy is not a ministerial act.

In view of the foregoing, petitioners' request to substitute the amended petition for the original petition is granted and respondents' cross motion to dismiss the amended petition in its entirety, is granted.

Dated: Long Island City, NY

April 8, 2013

______________________________

ROBERT J. McDONALD

J.S.C.