Majority
p. 836In the Matter of Richard Hammond, Petitioner, v John J. DeLury, Respondent. [618 NYS2d 562]
Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to issue a decision on a motion filed by the petitioner pursuant to CPL article 440.
Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto, it is
p. 837
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. v Scheinman, 53 NY2d 12 , 16). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Sullivan, J. P., Balletta, Lawrence and Florio, JJ., concur.
Cases cited
- Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 at 16 p. 837