Smith v. Byrne — 209 A.D.2d 704

Majority

p. 704

In the Matter of Steven Smith, Petitioner, v Thomas J. Byrne et al., Respondents.

[619 NYS2d 677]

—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

p. 705

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. Bracken, J. P., Miller, Ritter and Goldstein, JJ., concur.

Cases cited

Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 at 16 p. 705