Opinion
June 1, 1992
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the appeal from so much of the order and judgment as dismissed the declaratory judgment action is dismissed as academic; and it is further,
Ordered that the order and judgment is otherwise affirmed insofar as reviewed; and it is further,
Ordered that the respondents appearing separately and filing separate briefs are awarded one bill of costs.
The petitioners do not have standing to maintain the cause of action alleging public nuisance. A claim for damages arising from a public nuisance which interferes with or causes damage to the public in the exercise of rights common to all, cannot be maintained by a private individual absent special damages (see, Copart Indus. v. Consolidated Edison Co., 41 N.Y.2d 564, 568; Queens County Bus. Alliance v. New York Racing Assn., 98 A.D.2d 743). The petitioners have failed to allege an injury different from that suffered by other residents in their community.
Regardless of whether erection of a fence by the respondents Petosas is in violation of the New York City Zoning Resolution, the decision to enforce that resolution rests in the discretion of public officials charged with enforcement and is not a proper subject for relief in the nature of mandamus to compel (see, Matter of Young v. Town of Huntington, 121 A.D.2d 641; Matter of Fried v. Fox, 49 A.D.2d 877).
We note that the month-to-month tenancy between Carmine Petosa and the City of New York was terminated pursuant to the City's service of a 30-day notice upon Carmine Petosa during the pendency of this appeal. Accordingly, the petitioners' claim as to the legality of the lease is academic. Balletta, J.P., Rosenblatt, Miller and Pizzuto, JJ., concur.