Morrison v. Hynes

Appellate Division of the Supreme Court of New York

Morrison v. Hynes

82 A.D.3d 772, 917 N.Y.2d 908

Appellate Division of the Supreme Court of the State of New York·Decided March 1, 2011·Published·Cited by 7 cases

Opinion

The extraordinary remedy of a writ of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief sought has been demonstrated (see Klostermann v Cuomo, 61 NY2d 525, 537 [1984]; Matter of Salisbury v Lapidez, 277 AD2d 319 [2000]; Matter of Kusky v Town of Islip, 266 AD2d 460, 461 [1999]; Matter of Perazzo v Lindsay, 30 AD2d 179 [1968], affd 23 NY2d 764 [1968]). Here, the petitioner seeks to compel the performance of acts involving the exercise of official [773] discretion or judgment (see Matter of Nieblas v Kings County Dist. Attorney, 209 AD2d 703 [1994]; People ex rel. Doe v Beaudoin, 102 AD2d 359, 365 [1984]; see also Sassower v Commission on Jud. Conduct of State of N.Y., 289 AD2d 119 [2001]) and, thus, the remedy of mandamus is not available.

The petitioner’s remaining contentions are either without merit or not properly before this Court.

Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding. Prudenti, EJ., Eng, Belen and Sgroi, JJ., concur.

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The extraordinary remedy of a writ of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief sought has been demonstrated (see Klostermann v Cuomo, 61 NY2d 525, 537 [1984]; Matter of Salisbury v Lapidez, 277 AD2d 319 [2000]; Matter of Kusky v Town of Islip, 266 AD2d 460, 461 [1999]; Matter of Perazzo v Lindsay, 30 AD2d 179 [1968], affd 23 NY2d 764 [1968]). Here, the petitioner seeks to compel the performance of acts involving the exercise of official [773] discretion or judgment (see Matter of Nieblas v Kings County Dist. Attorney, 209 AD2d 703 [1994]; People ex rel. Doe v Beaudoin, 102 AD2d 359, 365 [1984]; see also Sassower v Commission on Jud. Conduct of State of N.Y., 289 AD2d 119 [2001]) and, thus, the remedy of mandamus is not available.

The petitioner’s remaining contentions are either without merit or not properly before this Court.

Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding. Prudenti, EJ., Eng, Belen and Sgroi, JJ., concur.

Morrison v. Hynes, 82 A.D.3d 772, 917 N.Y.2d 908 (N.Y. Ct. App. 2011).

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Opinion

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