Matter of Miller v DeMaro (2003 NY Slip Op 18047)

Matter of Miller v DeMaro

2003 NY Slip Op 18047 [1 AD3d 363]

November 3, 2003

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, January 28, 2004

In the Matter of Janet Miller et al., Petitioners,
v
Joseph A. DeMaro, as Justice of the Supreme Court of the State of New York, Respondent.

—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to reinstate the complaint in an action entitled Miller v Radder, in the Supreme Court, Nassau County, under Index No. 8837/02.

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. Santucci, J.P., Friedmann, McGinity and Schmidt, JJ., concur.