Matter of Contant v. Kelly

2017 NY Slip Op 5951, 153 A.D.3d 520, 56 N.Y.S.3d 886, 2017 WL 3273283

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 2, 2017
• Docket: 2017-03374
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, a Justice of the Supreme Court, Rockland County, to hold a hearing on the petitioner’s motion pursuant to CPL 440.20 to vacate a judgment of that court rendered October 3, 2007, in a criminal action entitled People v Contant, brought under Rockland County indictment No. 06-00362, and application by the petitioner for leave to prosecute the proceeding as a poor person.

Ordered that the application for leave to prosecute the 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 on the merits, without costs or disbursements.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where 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.

Hall, J.P., Roman, Connolly and Barros, JJ., concur.