Matter of Anthony J. DeCintio v Peter Fox Cohalan

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Matter of DeCintio v Cohalan 2005 NY Slip Op 04420 [18 AD3d 872] May 31, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 20, 2005

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.

—[*1]

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. [*2]

"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]).

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.