Tuitt v. Molea

103 A.D.3d 906, 959 N.Y.S.2d 919

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 2013
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, in effect, in the nature of mandamus, inter alia, to compel the respondent, a Justice of the Supreme Court, Westchester County, to vacate an order of the same court entered August 29, 2012, in a criminal action entitled People v Tuitt, commenced in the Supreme Court, Westchester County, under indictment Number 05-0223. Motion by the petitioner to convert a portion of this proceeding into an action for declaratory relief, 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; and it is further,

Ordered that the motion to convert a portion of this proceeding into an action for declaratory relief is denied; and it is further,

Adjudged that the petition is denied and the proceeding is 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 failed to demonstrate a clear legal right to the relief sought. Eng, P.J., Rivera, Dickerson and Lott, JJ., concur.