743 N.Y.S.2d 880 | N.Y. App. Div. | 2002
—In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Office of the Building Inspector, Village of Mamaroneck, to review a determination with respect to the issuance of a building permit, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Nastasi, J.), entered June 8, 2001, which denied the petition and dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
Contrary to the petitioner’s contention, the Supreme Court properly denied the petition. The remedy of mandamus is the appropriate remedy to enforce the performance of a ministerial duty. It is not available to compel an act with respect to which an administrative agency may exercise judgment or discretion (see Klostermann v Cuomo, 61 NY2d 525, 539; Matter of Kusky v Town of Islip, 266 AD2d 460, 461). Here, the Village of Mamaroneck Village Code § 126-15 (a) which the petitioner seeks to compel the respondent to act upon vests discretionary authority in the respondent. As such, mandamus is not the appropriate remedy (see Matter of Kusky v Town oflslip, supra).
In any event, the issue presented in this proceeding has already been determined in a prior decision and order of this Court (see Kaufman v Village of Mamaroneck, 286 AD2d 666, lv denied 98 NY2d 602). Under the doctrine of res judicata, once a claim is brought to a final conclusion, all other claims arising from the same transaction or series of transactions are barred, even if based upon different theories or seeking a different remedy (see O’Brien v City of Syracuse, 54 NY2d 353,
