Matter of Johnson v Velasquez

Matter of Johnson v Velasquez 2017 NY Slip Op 08827 Decided on December 20, 2017 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 December 20, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
SHERI S. ROMAN, J.P.
JOSEPH J. MALTESE
HECTOR D. LASALLE
VALERIE BRATHWAITE NELSON, JJ.
2017-08759 DECISION, ORDER, & JUDGMENT

[*1]In the Matter of Johnathan Johnson, etc., petitioner,

v

Carmen R. Velasquez, etc., respondent.

Johnathan Johnson, Malone, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Michael J. Siudzinski of counsel), for respondent.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, a Justice of the Supreme Court, Queens County, to decide a motion in an underlying civil action entitled Johnson v "R" and "C" General Constr. Co., pending in that court under Index No. 20061/12, and application by the petitioner for leave to prosecute the proceeding as a poor person.

ORDERED that the application for leave to prosecute the proceeding as a poor person 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 on the merits, 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). The petitioner has failed to demonstrate a clear legal right to the relief sought.

ROMAN, J.P., MALTESE, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court