Arcady Associates v. Village of Ossining

596 Village of Ossining Code §§ 12-14 and 12-24 provide, inter alia, that all refuse to be collected by the village must be placed at the "curb line” for collection. A review of the petition and its supporting papers indicates that the petitioners are not challenging the constitutionality of these provisions. Rather, the petitioners are seeking relief, inter alia, in the nature of mandamus, i.e., to compel the village and its Department of Public Works to collect the petitioners’ refuse from dumpsters located on their premises. Since the village’s failure to collect refuse from these dumpsters does not violate any constitutional or statutory duty, the Supreme Court was not precluded from dismissing that branch of the petition which was for relief in the nature of mandamus on the ground of laches (see, Austin v Board of Higher Educ., 5 NY2d 430; Parsons v Department of Transp., 74 Misc 2d 828; cf., Matter of Cash v Bates, 301 NY 258; Toscano v McGoldrick, 300 NY 156). Indeed, since the petitioners waited approximately 20 years before requesting that the village provide garbage collection services to them, the Supreme Court properly dismissed that branch of the petition which was in the nature of mandamus on the ground of laches. Nevertheless, a review of the petition indicates that it specifically seeks reimbursement of "taxes paid by the Petitioners-Owners for the portion of the Village Taxes paid for garbage collection services, which were never received”. That branch of the petition should be converted into a declaratory judgment action (see, Matter of National Amusements v County of Nassau, 156 AD2d 566; CPLR 103 [c]; see also, Landmark Colony at Oyster Bay Homeowners’ Assn. v Town of Oyster Bay, 145 AD2d 542). However, that branch of the petition seeking reimbursement for the collection fees paid to private carters must be dismissed, since the petitioners have never complied, or even attempted to comply, with those provisions of the Village of Ossining Code which provide for "curb line” garbage collection. Mangano, J. P., Lawrence, Hooper and Harwood, JJ., concur.