Opinion
Argued February 10, 1975
Decided March 19, 1975
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH A. BRUST, J.
Richard Fischbein and Judith Kaufman for respondents.
Louis J. Lefkowitz, Attorney-General (Robert S. Hammer and Samuel A. Hirshowitz of counsel), for appellants.
In each of these similar cases, notwithstanding timely requests therefor, petitioners were denied a "manual stenographic record" (rather than a "mechanically recorded record") in proceedings pending in the Housing Part of the Civil Court of the City of New York, Bronx County. Petitioners claim that they were entitled to manual stenographic records under the provisions of subdivision (k) of section 110 of the New York City Civil Court Act, and seek summary relief in proceedings under CPLR article 78.
Preliminarily in Bey we conclude that it was an abuse of discretion on the part of the courts below to grant class relief since in the circumstances here presented, governmental operations being involved, on the granting of any relief to the petitioners comparable relief would adequately flow to others similarly situated under principles of stare decisis.
Turning then to the applications of these petitioners we conclude that the orders of the Appellate Divisions should be reversed. It is true that the denial in each case has been found to have been based not in the exercise of discretion but in the ministerial execution of a peremptory administrative order of general application issued by the Administrative Judge. In such circumstances the statutory bar to article 78 relief because of the availability of alternative relief is not applicable (8 Weinstein-Korn-Miller, N Y Civ Prac, pars 7801.06, 7801.07). Nonetheless, quite apart from the statutory provisions, we conclude that application for extraordinary relief under article 78 does not lie in view of the availability to petitioners of appellate review under the provisions of section 1702 of the New York City Civil Court Act, in the circumstances of these cases (op. cit., par 7801.07; cf. Matter of State of New York v King, 36 N.Y.2d 59, involving criminal matters).
We do not reach the contentions advanced by the parties on the merits.
The orders of the Appellate Division should accordingly be reversed and the petitions dismissed.
Despite the majority's assertion that the petitioners may resort to an alternate route, i.e., direct appellate review, it is highly unlikely that such a denial would, on review, be considered as prejudicing a substantial right. This is particularly true in light of the probable incompleteness of the record.
I agree with the courts below that the present proceedings were properly brought under the provisions of CPLR article 78 to challenge the refusal of the respective Judges of the Civil Court to grant such requests. The denial in each case has been found to have been based not in the exercise of discretion but in the ministerial execution of a peremptory administrative order of general application issued by the Administrative Judge. To the extent that the petitioners are seeking to compel a public official to perform a duty required by law, this case presents an article 78 in the nature of mandamus in its most classic sense. As such the requirement of finality and the ban on article 78 review of civil judicial proceedings are not applicable (8 Weinstein-Korn-Miller, N Y Civ Prac, pars 7801.06, 7801.07) and the extraordinary remedies under article 78 should be invoked.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES and COOKE concur in Per Curiam opinion; Judge WACHTLER dissents and votes to affirm in an opinion in which Judge FUCHSBERG concurs.
In each case: Order reversed, without costs, and petitions dismissed.