Smith v. Byrne

Appellate Division of the Supreme Court of New York

Smith v. Byrne

209 A.D.2d 704, 619 N.Y.S.2d 677, 1994 N.Y. App. Div. LEXIS 11776

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 28, 1994

StatusPublished

This text of 209 A.D.2d 704 (Smith v. Byrne) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Byrne, 209 A.D.2d 704, 619 N.Y.S.2d 677, 1994 N.Y. App. Div. LEXIS 11776 (N.Y. Ct. App. 1994).

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Opinion

—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel Thomas J. Byrne to grant the petitioner’s motion for clarification and reargument of an order of the County Court, Orange County, dated July 12, 1994, which, inter alia, denied, in part, that branch of the petitioner’s omnibus motion which was to suppress certain evidence.

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 [705]*705of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Bracken, J. P., Miller, Ritter and Goldstein, JJ., concur.

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—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel Thomas J. Byrne to grant the petitioner’s motion for clarification and reargument of an order of the County Court, Orange County, dated July 12, 1994, which, inter alia, denied, in part, that branch of the petitioner’s omnibus motion which was to suppress certain evidence.

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 [705]*705of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Bracken, J. P., Miller, Ritter and Goldstein, JJ., concur.

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Bluebook (online)

209 A.D.2d 704, 619 N.Y.S.2d 677, 1994 N.Y. App. Div. LEXIS 11776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-byrne-nyappdiv-1994.

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