Fuentes v. Cacciabaudo

259 A.D.2d 546, 686 N.Y.S.2d 482, 1999 N.Y. App. Div. LEXIS 2228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1999
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to hold a hearing pursuant to People v Tunstall (63 NY2d 1) and People v Hughes (59 NY2d 523) in a proceeding in the Supreme Court, Suffolk County, entitled People v Fuentes, under Indictment No. 2476/96, and application for poor person relief.

Motion by the respondent to dismiss the proceeding.

Ordered that the application for poor person relief 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,

Ordered that the motion is granted; 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. v Scheinman, 53 NY2d 12, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought. Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.