DeCintio v. Cohalan — 18 A.D.3d 872

Majority

p. 872

In the Matter of Anthony J. DeCintio, Petitioner, v Peter Fox Cohalan, as Justice of the Supreme Court of the State of New York, et al., Respondents.

[795 NYS2d 459]

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Peter Fox Cohalan, a Justice of the Supreme Court, Suffolk County, to determine the petitioner’s motion to vacate a judgment of the same court entered June 26, 2003, upon his default in appearing at a conference, in an action entitled Catania v DeCintio, under Suffolk County index No. 13972/98.

Motion by the respondent Andrew J. Schatkin, inter alia, to dismiss the proceeding insofar as asserted against him as time-barred.

Ordered that the motion is denied; and it is further,

Adjudged that the petition is granted, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the petitioner’s motion.

“Mandamus will lie to compel the determination of a motion” (Matter of Weinstein v Haft, 60 NY2d 625 , 627 [1983]; see Matter of Greenfield, 76 NY2d 293 [1990]; Matter of Silk & Bunks v Greenfield, 102 AD2d 734 [1984]; see also CPLR 2219 [a]). A judicial officer may be compelled to perform a ministerial duty prescribed by law, but not an act in respect to which he may exercise judgment or discretion (see Klostermann v Cuomo, 61 NY2d 525 , 540 [1984]; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12 [1981]). “The writ of mandamus . . . may [therefore] ... be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide in a particular manner” (Klostermann, supra at 540 , quoting People ex rel. Francis v Common Council of City of Troy, 78 NY 33 , 39 [1879]).

p. 873

Moreover, contrary to the respondents’ contention, “where a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring within the limitations period” (Matter of Condo Units v New York State Div. of Hous. & Community Renewal, 4 AD3d 424 , 425 [2004]; see Matter of Grossman v Rankin, 43 NY2d 493 , 506 [1977]; Matter of Dearman v City of White Plains, 237 AD2d 603 [1997]). “[W]here, as here, the practice complained of is a continuing one and is in violation of the New York State Constitution, the right to relief will not be barred by the four-month Statute of Limitations” (Matter of Policemen’s Benevolent Assn. of Vil. of Spring Val. v Goldin, 266 AD2d 294 [1999]). Finally, under the circumstances, the delay in commencing the proceeding was not so extensive as to bar the proceeding by the doctrine of laches (see Matter of Mutschler v Board of Educ., 177 AD2d 629 , 630-631 [1991]). Schmidt, J.P., Adams, Cozier and S. Miller, JJ., concur.

Cases cited

Weinstein v. Haft 60 NY2d 625 N.Y. 1983-09-01 at 627 p. 872
In re Greenfield 76 NY2d 293 N.Y. 1990-06-14 p. 872
Silk & Bunks, P. C. v. Greenfield 102 AD2d 734 N.Y. App. Div. 1984-06-14 p. 872
Klostermann v. Cuomo 61 NY2d 525 N.Y. 1984-03-27 at 540 p. 872
Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 p. 872
People ex rel. Francis v. Common Council 78 NY 33 N.Y. 1879-09-16 at 39 p. 872
Condo Units v. New York State Division of Housing & Community Renewal 4 AD3d 424 N.Y. App. Div. 2004-02-09 at 425 p. 873
Grossman v. Rankin 43 NY2d 493 N.Y. 1977-12-21 at 506 p. 873
Policemen's Benevolent Ass'n of Village of Spring Valley v. Goldin 266 AD2d 294 N.Y. App. Div. 1999-11-08 p. 873
Mutschler v. Board of Education 177 AD2d 629 N.Y. App. Div. 1991-11-18 at 630-631 p. 873