Wyman v. Lewis — 232 A.D.2d 647

Majority

p. 647

In the Matter of Gerard Wyman, Petitioner, v Daniel Lewis, Respondent.

[648 NYS2d 1012]

—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to declare a mistrial in a criminal proceeding entitled People v Wyman, pending in the Supreme Court, Queens County, and to direct the respondent to retry him under Queens County Indictment No. QN11073/95.

p. 648

Motion by the respondent to dismiss the proceeding.

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. Bracken, J. P., Sullivan, Altman and McGinity, JJ., concur.

Cases cited

Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 at 16 p. 648