White v. Fischer — 76 A.D.2d 1027

Majority

p. 1027

In the Matter of Gregory White, Petitioner, v Brian Fischer, Commissioner of the New York State Department of Correctional Services, et al., Respondents.

[907 NYS2d 689]

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondents to comply with a decision and order of this Court dated November 17, 2009 (People v White, 67 AD3d 933 [2009]). Application by the petitioner to prosecute this proceeding as a poor person.

p. 1028

Ordered that the application to prosecute this proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed on the merits, 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. of Sullivan County v Scheinman, 53 NY2d 12 , 16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Dillon, J.P., Florio, Leventhal and Chambers, JJ., concur.

Cases cited

Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 at 16 p. 1028