McReynolds v. Angione

246 A.D.2d 547, 666 N.Y.S.2d 932, 1998 N.Y. App. Div. LEXIS 162

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 1998
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to direct the respondents to allow the petitioner to religiously educate his son Darius, and application for poor person relief. Motion by the respondents to dismiss the proceeding.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto and in support of the motion, it is

Ordered that the application for poor person relief is granted; and it is further,

Ordered that the motion is granted; 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. v Scheinman, 53 NY2d 12, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought. Miller, J. P., Pizzuto, Santucci and Goldstein, JJ., concur.