Wesley v. Erlbaum

10 A.D.3d 727, 781 N.Y.S.2d 906, 2004 N.Y. App. Div. LEXIS 11039

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 2004
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent William M. Erlbaum, a Justice of Supreme Court, Queens County, to dismiss a criminal action pending in that court under indictment No. 1395/02, and application by the petitioner for poor person relief.

Motion by the respondent William M. Erlbaum to dismiss the proceeding.

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

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 is waived and the application is otherwise denied; 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. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Goldstein, J.P., Schmidt, Spolzino and Fisher, JJ., concur.