| Matter of Midgley v Goldberg |
| 2003 NY Slip Op 19756 [2 AD3d 735] |
| December 22, 2003 |
| Appellate Division, Second Department |
| As corrected through |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Owen Midgley, Petitioner, v Joel M. Goldberg, Respondent. |
—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to fully expunge all records pertaining to the petitioner's DNA sample pursuant to Executive Law § 995-c (9) (b) (ii). Motion by the petitioner to stay all proceedings in an action entitled People v Midgley, pending in the Supreme Court, Kings County, under Indictment No. 1256/02 pending the hearing and determination of this proceeding and motion by the respondent to dismiss the proceeding.
Ordered that the motion to dismiss the proceeding is granted; and it is further,
Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements; and it is further,
Ordered that the motion for a stay is denied as academic.
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. Altman, J.P., Krausman, Goldstein and Mastro, JJ., concur.