Matter of Mitchell v. Ambro

2017 NY Slip Op 1696, 148 A.D.3d 810, 47 N.Y.S.3d 912, 2017 WL 902456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 2017
• Docket: 2016-12993
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus, in effect, to compel the respondent Richard M. Ambro, a Justice of the Supreme Court, Suffolk County, inter alia, to grant the petitioner’s motion to vacate a judgment of the County Court, Suffolk County, rendered August 23, 2001, and to dismiss the indictment in the underlying criminal action, 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 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 relief 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.

Austin, J.P., Miller, LaSalle and Cohen, JJ., concur.