Matter of Owen Midgley v Joel M. Goldberg

Matter of Midgley v Goldberg 2003 NY Slip Op 19756 [2 AD3d 735] December 22, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of Owen Midgley, Petitioner,
v
Joel M. Goldberg, Respondent.

—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to fully expunge all records pertaining to the petitioner's DNA sample pursuant to Executive Law § 995-c (9) (b) (ii). Motion by the petitioner to stay all proceedings in an action entitled People v Midgley, pending in the Supreme Court, Kings County, under Indictment No. 1256/02 pending the hearing and determination of this proceeding and motion by the respondent to dismiss the proceeding.

Ordered that the motion to dismiss the proceeding is granted; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements; and it is further,

Ordered that the motion for a stay is denied as academic.

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. Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.