[DOWNLOAD] "Matter Corbeau Construction Corp. Et Al. v. Board Education" by Supreme Court of New York # Book PDF Kindle ePub Free

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• Title: Matter Corbeau Construction Corp. Et Al. v. Board Education
• Author : Supreme Court of New York
• Release Date : January 14, 1969
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 73 KB

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[32 A.D.2d 958 Page 958] The petitioners are general contractors who are seeking to recover moneys, certified by the respondent board's architect
as due and owing, with respect to additional work performed on a school improvement, pursuant to a contract between the parties.
As long ago as April 6, 1967, the petitioners-appellants were informed in the decision on their first CPLR article 78 proceeding
that that remedy was unavailable and inappropriate. They have persisted in this second CPLR article 78 proceeding. Mandamus
relief, pursuant to CPLR article 78, may not be used when there are other available remedies at law as, for example, an action
to recover damages for breach of contract (Matter of Lyon Co. v. Morris, 261 N. Y. 497; see, also, People ex rel. Richards
v. Hylan, 200 App. Div. 871; Matter of Colcagnini v. Burns, 216 N. Y. S. 2d 465). Moreover, the respondent Board is not being
charged with the violation of a statutory duty (see Matter of Phalen v. Theatrical Protective Union No. 1, 27 A.D.2d 909,
revd. 22 N.Y.2d 34). In Phalen the Court of Appeals agreed that the extraordinary remedy of mandamus pursuant to CPLR article
78 was unavailable in that case, which involved a union's unfair and discriminatory practices; nevertheless, the Court of
Appeals reversed the order that had dismissed the proceeding. In the portion of the majority opinion, pertinent herein, the
Court of Appeals said: "Our determination that petitioners have prosecuted their action in an improper form and requested
relief to which they are not entitled does not, however, serve to put them out of court. The improper form in which their
action has been brought and their failure to request the appropriate relief is not a bar to their receiving whatever relief
they may be entitled to. CPLR 103 (subd. [c]) provides that once a court has obtained jurisdiction over the parties in a 'civil
judicial proceeding' the proceeding 'shall not be dismissed solely because it is not brought in the proper form, but the court
shall make whatever order is required for its proper prosecution's and CPLR 105 (subd. [d]), which defines 'civil judicial
proceeding', is clearly broad enough to include the instant proceeding, defining a 'civil [32 A.D.2d 958 Page 959]

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