Matter of Pettus v Justices of Kings County & Supreme Ct.

Matter of Pettus v Justices of Kings County & Supreme Ct. 2009 NY Slip Op 08016 [67 AD3d 686] November 4, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of James Pettus, Petitioner,
v
Justices of Kings County and Supreme Court, Respondents.

—[*1] James Pettus, Pine City, N.Y., petitioner pro se.

Andrew M. Cuomo, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondents.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel a Justice of the Supreme Court, Kings County, to accept for filing the summons and complaint in an action entitled Pettus v City of New York, under index No. 21369/07, without payment of the filing fee, 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. Fisher, J.P., Covello, Dickerson and Lott, JJ., concur.