In re Orfali

Appellate Division of the Supreme Court of New York

In re Orfali

123 A.D.2d 275, 506 N.Y.S.2d 568, 1986 N.Y. App. Div. LEXIS 60055

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 25, 1986

StatusPublished

This text of 123 A.D.2d 275 (In re Orfali) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Orfali, 123 A.D.2d 275, 506 N.Y.S.2d 568, 1986 N.Y. App. Div. LEXIS 60055 (N.Y. Ct. App. 1986).

Pincite

Opinion

Judgment of the Supreme Court, New York County (Richard W. Wallach, J.), entered on June 4, 1985, which granted the petition to the extent of directing respondent to file, along with the original records of petitioner’s marriage, a corrective affidavit stating the true facts as to petitioner’s name and birth date and to note the correction on his marriage license, is unanimously reversed, on the law, and the petition dismissed, without costs or disbursements.

It is well established that the extraordinary remedy of mandamus is available only to enforce the performance of a ministerial duty and thus may not be awarded to compel an act involving the exercise of discretion by a public official. (Klostermann v Cuomo, 61 NY2d 525.) Domestic Relations Law § 20 provides that respondent City Clerk "may” take action to correct documents relating to contracts of marriage where "it is claimed that a mistake has been made through inadver[276]*276tence in any of the statements, affidavits or other papers required by this section to be filed”. In the instant situation, there was no inadvertent error on the part of either petitioner or respondent. Indeed, respondent duly noted and filed the information furnished by petitioner in connection with his marriage. Any alleged mistakes contained in petitioner’s marriage records were caused by the fact that he knowingly submitted false documentation allegedly derived from his unfortunate Iranian experience. Since petitioner does not possess a clear right to the relief being sought, the petition should be dismissed. Concur—Murphy, P. J., Kupferman, Ross, Milonas and Kassal, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment of the Supreme Court, New York County (Richard W. Wallach, J.), entered on June 4, 1985, which granted the petition to the extent of directing respondent to file, along with the original records of petitioner’s marriage, a corrective affidavit stating the true facts as to petitioner’s name and birth date and to note the correction on his marriage license, is unanimously reversed, on the law, and the petition dismissed, without costs or disbursements.

It is well established that the extraordinary remedy of mandamus is available only to enforce the performance of a ministerial duty and thus may not be awarded to compel an act involving the exercise of discretion by a public official. (Klostermann v Cuomo, 61 NY2d 525.) Domestic Relations Law § 20 provides that respondent City Clerk "may” take action to correct documents relating to contracts of marriage where "it is claimed that a mistake has been made through inadver[276]*276tence in any of the statements, affidavits or other papers required by this section to be filed”. In the instant situation, there was no inadvertent error on the part of either petitioner or respondent. Indeed, respondent duly noted and filed the information furnished by petitioner in connection with his marriage. Any alleged mistakes contained in petitioner’s marriage records were caused by the fact that he knowingly submitted false documentation allegedly derived from his unfortunate Iranian experience. Since petitioner does not possess a clear right to the relief being sought, the petition should be dismissed. Concur—Murphy, P. J., Kupferman, Ross, Milonas and Kassal, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

123 A.D.2d 275, 506 N.Y.S.2d 568, 1986 N.Y. App. Div. LEXIS 60055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-orfali-nyappdiv-1986.

Opinion

Related

Cite This Page — Counsel Stack