Rivergate Co. v. Board of Standards & Appeals of the City of New York

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered February 11, 1988, which dismissed petitioners’ application for a writ of mandamus directing respondents to enforce a New York City Zoning Resolution requiring a city heliport operator to obtain a special permit, unanimously affirmed, without costs. The outcome of this appeal is controlled by a long-standing principle, namely, "the settled policy of the courts not to review the exercise of discretion by public officials in the enforcement of State statutes, in the absence of a clear violation of some constitutional mandate.” (Gaynor v Rockefeller, 15 NY2d 120, 131; see also, Matter of Perazzo v Lindsay, 30 AD2d 179, affd 23 NY2d 764.) There is yet no mandatory ministerial duty that can be lawfully imposed upon the respondent Commissioner. Rather, he has broad executive discretion to allow the heliport located at 34th Street and the East River to continue operations while its application for a special permit goes forward. Concededly, there has been considerable delay in the operator’s prosecution of its application for the permit, but we recognize the obstructive impact of certain intervening events such as the operator’s bankruptcy, followed by a detailed stipulation with the city as to liquidation of rent arrears and the curing of other defaults. This is not to say that executive discretion will provide a permanent cloak for lack of diligence by the operator in pursuing the issuance of a special permit in compliance with law which preliminarily requires the filing of an appropriate environmental impact statement with all necessary amendments and addenda thereto. At some time in the future, acquiescence by the Commissioner in the present licensing limbo could constitute an abuse of discretion. All we hold today is that the time now elapsed has yet to reach that pivotal point. Concur — Kupferman, J. P., Sullivan, Milonas, Ellerin and Wallach, JJ.