Opinion
February 20, 1990
Appeal from the Supreme Court, Westchester County (West, J.).
Ordered that the appeal from the judgment entered July 15, 1988, is dismissed, without costs or disbursements, as that judgment was superseded by the order entered January 18, 1989, made upon reargument; and it is further,
Ordered that the cross appeal is dismissed, without costs or disbursements (see, Parochial Bus Sys. v Board of Educ., 60 N.Y.2d 539); and it is further,
Ordered that the order entered January 18, 1989, is modified, on the law, by adding a provision thereto converting that portion of the proceeding which requested "reimbursement of taxes paid by the Petitioners-Owners for the portion of the Village Taxes paid for garbage collection services, which were never received", into an action for a declaratory judgment (see, CPLR 103 [c]), with the petition deemed the complaint; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the action for a declaratory judgment is severed from the proceeding pursuant to CPLR article 78 and the time to serve an answer to the complaint is extended until 30 days after service upon the Village of Ossining and the Village of Ossining Department of Public Works of a copy of this decision and order, with notice of entry.
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 N.Y.2d 430; Parsons v Department of Transp., 74 Misc.2d 828; cf., Matter of Cash v Bates, 301 N.Y. 258; Toscano v McGoldrick, 300 N.Y. 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 A.D.2d 566; CPLR 103 [c]; see also, Landmark Colony at Oyster Bay Homeowners' Assn. v Town of Oyster Bay, 145 A.D.2d 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, Kooper and Harwood, JJ., concur.