Matter of Park Avenue Estates, LLC and Darryl Carr v City of Buffalo and City of Buffalo Permit & Inspection Services
Attorneys and Parties
Brief Summary
Municipal code enforcement and emergency demolition; administrative law (exhaustion of remedies and mandamus).
Dismissed the CPLR article 78 proceeding [special proceeding to challenge administrative action or to compel performance of a duty] for failure to exhaust administrative remedies, reasoning that petitioners first needed Preservation Board approval to demolish.
The dismissal was unanimously reversed; respondents’ pre-answer motion to dismiss was denied; the petition was reinstated and respondents were given 20 days to answer.
Emergency demolition under City Code § 113-15 [requires demolition of certain fire-damaged wooden/frame buildings exceeding one-half of value] is not contingent on Preservation Board approval, and petitioners sought mandamus under CPLR 7803(1) [mandamus to compel performance of a ministerial act imposed by law]; thus no further administrative remedies were required.
Background
The same two properties were previously subject to a condemnation determination and to code-violation proceedings involving denied demolition permission. The City has not commenced an acquisition under EDPL 401(a)(3) [provides for commencement of an eminent domain acquisition proceeding; title remains with owner until acquisition], so Carr still holds title. After a two-alarm fire further damaged one property, the Commissioner ordered stabilization at petitioners’ expense. Petitioners requested an emergency demolition under City Code § 113-15, asserting the damage threshold required demolition. The Commissioner denied the request, stating the affected structure is a heavy timber (Type IV) building, rendering § 113-15 inapplicable. A reconsideration request went unanswered, and petitioners commenced this CPLR article 78 proceeding alleging the determination was arbitrary and capricious and that the Commissioner failed to execute a duty imposed by the Code.
Lower Court Decision
Supreme Court, Erie County granted respondents’ pre-answer motion to dismiss on exhaustion grounds, holding petitioners needed to seek Preservation Board approval for demolition before pursuing relief.
Appellate Division Reversal
Unanimously reversed on the law. The court held that demolition under City Code § 113-15 is not conditioned on Preservation Board approval and that petitioners’ claim for mandamus to compel under CPLR 7803(1) alleges a ministerial duty. With no additional administrative remedies to exhaust, dismissal was improper. The motion to dismiss was denied, the petition reinstated, and respondents granted 20 days to answer.
Legal Significance
Clarifies that where a municipal code imposes a mandatory demolition duty based on objective damage thresholds, a property owner may seek mandamus without first obtaining separate demolition approvals (e.g., from a preservation board). Reinforces that exhaustion is not required when a petitioner seeks to compel a ministerial act and no further administrative remedy is prescribed.
When seeking emergency demolition under a mandatory city code provision, owners need not first obtain Preservation Board approval; a CPLR article 78 mandamus claim may proceed to compel the Commissioner to perform the ministerial duty if the statute’s conditions are met.