Opinion
June 23, 1986
Appeal from the Supreme Court, Suffolk County (Orgera, J.).
Order affirmed, with costs.
In this proceeding in the nature of mandamus, the petitioners, who are homeowners in a residential district adjoining an industrial district containing a municipal storage and repair garage, seek to compel the respondent, the Town of Huntington, to comply with the zoning and building provisions of its town code in the operation of the garage. They contend that since about 1975 the expansion and intensified use of the garage has caused increased noise, traffic and glare in their neighborhood.
Special Term properly dismissed the petition. It is well established that mandamus is an extraordinary remedy which will lie only to enforce a clear legal right (see, Matter of City of Newburgh v. Public Employment Relations Bd., 63 N.Y.2d 793). It will not lie to compel performance of a discretionary duty by an administrative body, but only to compel performance of an act commanded to be performed by law and involving no exercise of discretion (see, Matter of Hamptons Hosp. Med. Center v Moore, 52 N.Y.2d 88). Regardless of whether certain of the conditions said to be existing at the garage may violate the zoning or building provision of the town code, the decision to enforce those codes rests in the discretion of the public officials charged with enforcement (see, Matter of Fried v. Fox, 49 A.D.2d 877; Matter of Perazzo v. Lindsay, 30 A.D.2d 179, affd 23 N.Y.2d 764) and is not a proper subject for relief in the nature of mandamus. Mangano, J.P., Brown, Rubin and Lawrence, JJ., concur.