Matter of Levy v. Rooney

129 A.D.3d 728, 9 N.Y.S.3d 588

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 2015
• Docket: 2015-02863
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent James Rooney, a Judge of the County Court, Putnam County, to conduct a Sirois hearing (see People v Sirois, 92 AD2d 618 [1983]), in an action entitled People v Zaimi, pending in the County Court, Putnam County, under indictment No. 47/13, or, in the alternative, for a judgment declaring that the respondent James Rooney is required to conduct the Sirois hearing.

Ordered that the branch of the petition which is for a judgment declaring that the respondent James Rooney is required to conduct a Sirois hearing is dismissed; and it is further,

Adjudged that the petition is otherwise 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]; Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]). The petitioner failed to establish a clear legal right to the relief sought.

Chambers, J.P., Cohen, Hinds-Radix and Duffy, JJ., concur.

Motion by the petitioner to amend the petition in a proceeding, inter alia, pursuant to CPLR article 78.

Upon the papers filed in support of the motion and the papers filed in relation thereto, it is

Ordered that the motion is granted, and the petition is amended to reflect that the petitioner intends to prosecute the action entitled People v Zaimi, pending in the County Court, Putnam County, under indictment No. 47/13, in the absence of testimony from a certain witness.

Chambers, J.P., Cohen, Hinds-Radix and Duffy, JJ., concur.