Opinion
July 9, 1982
Appeal from the Supreme Court, Erie County, Kramer, J.
Present — Dillon, P.J., Simons, Hancock, Jr., Callahan and Moule, JJ. (Order entered June 24, 1982.)
Judgment unanimously reversed, without costs, petition reinstated and respondents' time to answer extended to July 1, 1982. Memorandum: Plaintiffs-petitioners ("petitioners"), the Italian Sons and Daughters of America, Inc. ("Amici Lodge") and the Italian Village Council, appeal from an order of Special Term summarily denying their "Complaint and Petition" ("petition") which claims that defendant-respondent Common Council of the City of Buffalo acted arbitrarily and capriciously, and unconstitutionally, in denying their application for a permit to close a public street to conduct the annual "Italian Festival." Petitioners brought this proceeding pursuant to CPLR article 78 and for declaratory relief under CPLR 3001 and allege that they were asked collectively to make a $3,000 payment as a precondition to being granted the permit; that they refused; that they were thereupon denied a permit; and that defendants-respondents, the Federation of Italian American Societies and the Connecticut Street Village Society ("respondent associations"), were subsequently granted a permit for the same street and purpose without any payment required. We hold that Special Term erred in denying the petition summarily. It is not sufficient for Special Term to have concluded, as it did, that the grant of a permit is a matter of discretion. An arbitrary exercise of discretion is subject to judicial review ( Matter of Franchina v. Codd, 57 A.D.2d 394, 398, 402 [dissent], revd on other grounds 46 N.Y.2d 816; WNEK Vending Amusements Co. v. City of Buffalo, 107 Misc.2d 353, 360-361; see Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 230-231). The decision whether to grant a permit to close a public street would ordinarily be "left to the 'untrammeled discretion' of the legislative body," but not if that discretion is exercised arbitrarily or capriciously since a legislative body must act reasonably ( Matter of Turgeon v Buffalo Common Council, 78 A.D.2d 774). While the granting of a permit to another applicant should not normally be permitted to be raised by an applicant who is denied a permit, because the applications in this case were so substantially similar (i.e., the same street, for the same purpose, at approximately the same time of year), the inference arises that common council may have acted arbitrarily (cf. Matter of Cowan v. Kern, 41 N.Y.2d 591, 595, quoting Matter of Larkin Co. v. Schwab, 242 N.Y. 330, 336-337; accord Matter of Crossroads Recreation v. Broz, 4 N.Y.2d 39, 46-47). "Capricious action in a legal sense is established when an administrative agency on identical facts decides differently ( Matter of Fitzgerald v. State Div. of Dept. of Public Serv. of State of N.Y., 262 App. Div. 393, 397)" ( Matter of Lefrak Forest Hills Corp. v. Galvin, 40 A.D.2d 211, 217, affd 32 N.Y.2d 796, cert den sub nom. Baum v. Lefrak Forest Hills Corp., 414 U.S. 1004). At oral argument it was conceded that respondent associations were not required to make a $3,000 payment. Although other payments or conditions, claimed to be more stringent, are alleged to have been imposed on respondent associations, they are not in the record before us. Therefore after issue is properly joined (CPLR 7804, subd [c]), the matter should proceed to an immediate trial of the factual issues pursuant to CPLR 7804 (subd [h]). Special Term, if it finds it appropriate to do so, should treat the special proceeding as an action for a declaratory judgment (CPLR 103, subd [c]).