Bankhead v. Stoil-Fernandez

53 A.D.3d 575, 860 N.Y.S.2d 402

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 2008
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel, among others, the respondent Yvonne Lewis, a Justice of the Supreme Court, Kings County, to recuse herself from presiding in an underlying proceeding entitled Matter of Linda B. pending in that court under index No. 100270/03. Application by the petitioner to prosecute this proceeding as a poor person.

Ordered that the application to prosecute this proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied as academic; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Miller, J.P., Dillon, Balkin and McCarthy, JJ., concur.