## Facts

- Corbeau Construction Corp. (Corbeau) entered into a contract with the Board of Education of Union Free School District No. 9, Town of Greenburgh (the Board) to perform a school improvement project.
- Corbeau claimed it performed additional work under the contract and sought payment for that work.
- Corbeau alleged that the Board’s architect certified certain sums as “due and owing” for the additional work.
- Corbeau commenced a CPLR Article 78 proceeding seeking to compel the Board to pay the claimed amounts.
- In a decision dated April 6, 1967, on Corbeau’s first Article 78 proceeding, Corbeau was advised that the relief sought was unavailable and inappropriate in an Article 78 proceeding.
- Corbeau nevertheless filed a second Article 78 proceeding seeking a mandamus order directing payment.
- Supreme Court, Westchester County, entered a judgment dated December 10, 1968 that, among other things, dismissed the petition.
- Corbeau appealed to the Appellate Division, Second Department.

## Issues

1. May a contractor use CPLR Article 78 mandamus to compel a school board to pay money allegedly owed under a construction contract, including amounts the board’s architect has certified as due?
2. If Article 78 is an improper procedural form for a contract payment claim, should the proceeding be dismissed, or should the court allow the matter to continue in the proper procedural form under CPLR 103(c)?

## Decision

- The Appellate Division held that mandamus relief under CPLR Article 78 is not available to collect contract monies where an adequate remedy at law exists, such as an action for damages for breach of contract.
- The court noted that the Board was not charged with violating a statutory duty; the dispute concerned alleged contractual payment obligations.
- The court modified the judgment by striking the decretal provisions except the provision denying the respondent’s cross-motion.
- Rather than leaving petitioners out of court because they chose the wrong form, the court remanded the matter to Special Term for entry of an order under CPLR 103(c) allowing the proper prosecution of the case.
- As modified, the judgment was affirmed, without costs.
- The court stated that no questions of fact were considered on the appeal.

## Legal Principles

- Mandamus under CPLR Article 78 does not lie to enforce payment obligations that arise from contract when an ordinary action for damages (including breach of contract) is available.
- Article 78 mandamus is generally limited to enforcing a clear legal duty; where the respondent is not alleged to have violated a statutory duty, contract-based payment demands are not a proper basis for mandamus.
- Under CPLR 103(c), a civil judicial proceeding should not be dismissed solely because it was brought in the wrong form; the court should issue the order required for the matter’s proper prosecution.
- CPLR 3017(a) allows a court to grant relief within its jurisdiction that is appropriate to the proof, even if the requested relief was not properly demanded.
- An architect’s certification of amounts “due and owing” does not, by itself, convert a contract payment dispute into an Article 78 mandamus claim.

## Conclusion

Corbeau could not use Article 78 mandamus to compel the Board to pay sums claimed under a construction contract, even if certified by the Board’s architect, because an adequate remedy at law existed and no statutory duty was alleged; however, the Appellate Division held the case should not be dismissed solely for improper form and remanded for continuation in the proper procedural posture under CPLR 103(c).


Corbeau Construction Corp. v. Board of Education, Union Free School District No. 9, Town of Greenburgh, 32 A.D.2d 958, 302 N.Y.S.2d 940 (1969)