Matter of Horowitz v New York City Police Dept.

Matter of Horowitz v New York City Police Dept. 2011 NY Slip Op 01841 Decided on March 8, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 8, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
PETER B. SKELOS
RANDALL T. ENG
SANDRA L. SGROI, JJ.
2010-05641
(Index No. 29743/09)

[*1]In the Matter of Jeffrey Horowitz, appellant,

v

New York City Police Department, respondent.



 
Jeffrey Horowitz, Brooklyn, N.Y., appellant pro se.
Michael A. Cardozo, Corporation Counsel, New York, N.Y.
(Pamela Seider Dolgow of counsel; Alyse
Fiori on the brief), for respondent.

 
DECISION & ORDER

In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent to conduct a further investigation into an alleged criminal offense, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Ruchelsman, J.), dated April 28, 2010, which granted the respondent's motion to dismiss the proceeding on the merits and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, without costs or disbursements.

The extraordinary remedy of a writ of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief has been demonstrated (see Klostermann v Cuomo, 61 NY2d 525, 537; Matter of Salisbury v Lapidez, 277 AD2d 319; Matter of Kusky v Town of Islip, 266 AD2d 460, 461; Matter of Bullion v Safir, 249 AD2d 386; Matter of Peirez v Caso, 72 AD2d 797). Here, the petitioner sought to compel the respondent to perform the discretionary act of continuing the investigation of an alleged larceny of a relatively small amount of money that occurred in 2006, in the hope that the investigation may allow the petitioner to expose alleged widespread nursing home abuses. Since the conduct which the petitioner sought to compel clearly involves the application of police discretion and judgment, the remedy of mandamus was not available (see e.g. Matter of Walsh v LaGuardia, 269 NY 437; Matter of Okslen Acupuncture, P.C. v Dinallo, 77 AD3d 451, 452; Matter of Grzyb v Constantine, 182 AD2d 942; Matter of Young v Town of Huntington, 121 AD2d 641, 642; Matter of Perazzo v Lindsay, 30 AD2d 179, 180, affd 23 NY2d 764). Accordingly, the Supreme Court properly granted the respondent's motion to dismiss the proceeding on the merits, and dismissed the proceeding.
MASTRO, J.P., SKELOS, ENG and SGROI, JJ., concur. [*2]

ENTER:

Matthew G. Kiernan

Clerk of the Court