Smith v. Supreme Court

Appellate Division of the Supreme Court of New York

Smith v. Supreme Court

14 A.D.3d 569, 787 N.Y.S.2d 667, 2005 N.Y. App. Div. LEXIS 408

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

DecidedJanuary 18, 2005

StatusPublished

This text of 14 A.D.3d 569 (Smith v. Supreme Court) 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. Supreme Court, 14 A.D.3d 569, 787 N.Y.S.2d 667, 2005 N.Y. App. Div. LEXIS 408 (N.Y. Ct. App. 2005).

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Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Supreme Court, Kings County, and James F. Imperatrice, the Chief Clerk of Kings County, to issue a determination in accordance with CPL 440.30 (7) on the petitioner’s motion pursuant to CPL 440.10 to set aside the verdict rendered in People v Kevin Smith in the Supreme Court, Kings County, under indictment No. 2183/86, which motion was denied on November 22, 1988.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

[570]*570Under the circumstances of this case, while mandamus to compel may lie, because of the petitioner’s unreasonable delay in bringing this proceeding to compel the Supreme Court to issue a determination in accordance with CPL 440.30 (7) on his motion pursuant to CPL 440.10, the proceeding is barred by the doctrine of laches (see Austin v Board of Higher Educ. of City of N.Y., 5 NY2d 430 [1959]; Yonkers Racing Corp. v City of Yonkers, 301 AD2d 592 [2003]; Matter of Thomas v City of Buffalo Inspections Dept., 275 AD2d 1004 [2000]; Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838 [1999]; Matter of Civil Serv. Empls. Assn. v Board of Educ., Patchogue-Medford Union Free School Dist., 239 AD2d 415 [1997]; Matter of Kolson v New York City Health & Hosps. Corp., 53 AD2d 827 [1976]). Adams, J.P., Santucci, Crane and Mastro, JJ., concur.

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Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the Supreme Court, Kings County, and James F. Imperatrice, the Chief Clerk of Kings County, to issue a determination in accordance with CPL 440.30 (7) on the petitioner’s motion pursuant to CPL 440.10 to set aside the verdict rendered in People v Kevin Smith in the Supreme Court, Kings County, under indictment No. 2183/86, which motion was denied on November 22, 1988.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

[570]*570Under the circumstances of this case, while mandamus to compel may lie, because of the petitioner’s unreasonable delay in bringing this proceeding to compel the Supreme Court to issue a determination in accordance with CPL 440.30 (7) on his motion pursuant to CPL 440.10, the proceeding is barred by the doctrine of laches (see Austin v Board of Higher Educ. of City of N.Y., 5 NY2d 430 [1959]; Yonkers Racing Corp. v City of Yonkers, 301 AD2d 592 [2003]; Matter of Thomas v City of Buffalo Inspections Dept., 275 AD2d 1004 [2000]; Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838 [1999]; Matter of Civil Serv. Empls. Assn. v Board of Educ., Patchogue-Medford Union Free School Dist., 239 AD2d 415 [1997]; Matter of Kolson v New York City Health & Hosps. Corp., 53 AD2d 827 [1976]). Adams, J.P., Santucci, Crane and Mastro, JJ., concur.

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Bluebook (online)

14 A.D.3d 569, 787 N.Y.S.2d 667, 2005 N.Y. App. Div. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-supreme-court-nyappdiv-2005.

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