Cruz v. Tomei — 232 A.D.2d 486

Majority

p. 486

In the Matter of George Cruz, Petitioner, v Albert Tomei, as Justice of the New York State Supreme Court, Respondent.

[648 NYS2d 340]

—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to vacate an order of the Supreme Court, Kings County, dated March 19, 1996, in the matter entitled People v George Cruz (Kings County Indictment No. 10341/91), and to compel the respondent to grant the petitioner’s application for a copy of the presentence report.

Motion by the respondent to dismiss the proceeding.

p. 487

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. v Scheinman, 53 NY2d 12 , 16). The petitioner has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Rosenblatt, Sullivan and Hart, JJ., concur.

Cases cited

Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 at 16 p. 487