Matter of Sullivan v. Morgenstern

2017 NY Slip Op 992, 147 A.D.3d 864, 46 N.Y.S.3d 429

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2017
• Docket: 2016-06833
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Esther M. Morgenstern, a Justice of the Supreme Court, Kings County, (1) to decide the petitioner’s motion to vacate an order of the Supreme Court, Kings County, dated August 12, 2013, in an action entitled Sullivan v Sullivan, pending under Kings County index No. 54601/ 11, and (2) to schedule a preliminary conference in a related matter, 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,

Ordered that the branch of the petition which is to compel Justice Morgenstern to determine the petitioner’s motion to vacate the order dated August 12, 2013, is denied as academic, in light of an order dated January 10, 2017, which determined the motion; and it is further,

Adjudged that the petition is otherwise denied and the proceeding is otherwise 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.

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