Matter of O'Connor v Modica

Matter of O'Connor v Modica 2006 NY Slip Op 07887 [33 AD3d 1007] October 31, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

In the Matter of Robert O'Connor, Petitioner,
v
Deborah Stevens Modica, as Justice of the Criminal Court of the City of New York, Respondent.

—[*1]Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent Deborah Stevens Modica, a Justice of the Criminal Court of the City of New York, Queens County, to vacate an order of that court dated May 15, 2006, in an action entitled People v O'Connor, pending under docket No. 6Q005976, and application by the petitioner for poor person relief.

Ordered that the application for poor person relief 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, 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. Crane, J.P., Krausman, Spolzino and Skelos, JJ., concur.