Madden v. Knipel

Appellate Division of the Supreme Court of New York

Madden v. Knipel

71 A.D.3d 1149, 899 N.Y.S.2d 621

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

DecidedMarch 30, 2010

StatusPublished

This text of 71 A.D.3d 1149 (Madden v. Knipel) 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

Madden v. Knipel, 71 A.D.3d 1149, 899 N.Y.S.2d 621 (N.Y. Ct. App. 2010).

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Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, Lawrence Knipel, a Justice of the Supreme Court, Kings County, to determine the petition in an underlying proceeding pursuant to CPLR article 78 entitled Matter of Madden v Hynes, pending in the Supreme Court, Kings County, under index No. 9058/09, and application by the petitioner for poor person relief.

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; 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]). Here, the Supreme Court scheduled March 19, 2010, as the return date for its consideration of the petition in the underlying proceeding pursuant to CPLR article 78. Since less [1150]*1150than 60 days have elapsed since the underlying proceeding pursuant to CPLR article 78 was submitted for determination (see CPLR 2219 [a]; Slavuter v Slavuter, 304 AD2d 820, 821 [2003]), the petitioner has failed to demonstrate a clear legal right to the relief sought. Dillon, J.P., Santucci, Balkin and Sgroi, JJ., concur.

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Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, Lawrence Knipel, a Justice of the Supreme Court, Kings County, to determine the petition in an underlying proceeding pursuant to CPLR article 78 entitled Matter of Madden v Hynes, pending in the Supreme Court, Kings County, under index No. 9058/09, and application by the petitioner for poor person relief.

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; 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]). Here, the Supreme Court scheduled March 19, 2010, as the return date for its consideration of the petition in the underlying proceeding pursuant to CPLR article 78. Since less [1150]*1150than 60 days have elapsed since the underlying proceeding pursuant to CPLR article 78 was submitted for determination (see CPLR 2219 [a]; Slavuter v Slavuter, 304 AD2d 820, 821 [2003]), the petitioner has failed to demonstrate a clear legal right to the relief sought. Dillon, J.P., Santucci, Balkin and Sgroi, JJ., concur.

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Bluebook (online)

71 A.D.3d 1149, 899 N.Y.S.2d 621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/madden-v-knipel-nyappdiv-2010.

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