Matter of Furino v Erlbaum

Matter of Furino v Erlbaum 2010 NY Slip Op 05766 [74 AD3d 1340] June 29, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

In the Matter of Mary Aloisio Furino, Petitioner,
v
William Erlbaum, as Justice of the Supreme Court of the State of New York, et al., Respondents.

—[*1] Raymond E. Kerno, Mineola, N.Y., for petitioner.

Andrew M. Cuomo, Attorney General, New York, N.Y. (Roberta L. Martin of counsel), for respondent William Erlbaum.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Jill Gross Marks of counsel), respondent pro se (no papers filed).

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent William Erlbaum, a Justice of the Supreme Court, Queens County, to modify a sentence imposed upon nonparty Carmine Furino, which included an order of protection directing him to stay away from the petitioner, by modifying the order of protection to allow Carmine Furino to have contact with the petitioner.

Motion by the respondent William Erlbaum, in which the respondent Richard A. Brown joins, to dismiss the petition.

Upon the petition, and the papers filed in support of the motion and the papers filed in opposition thereto, it is, Ordered that the motion is granted; 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 where 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., Balkin, Eng and Chambers, JJ., concur.