| Matter of Smithson v Tolbert |
| 2008 NY Slip Op 01154 [48 AD3d 471] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Curtis Smithson, Petitioner, v Bruce E. Tolbert, as Justice of the Supreme Court of the State of New York, Respondent. |
—[*1]
Andrew M. Cuomo, Attorney General, New York, N.Y. (Amy L. Abramowitz of counsel),
for respondent.
Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent Bruce E. Tolbert, a Justice of the Supreme Court, Westchester County, to enter a judgment of divorce in favor of the petitioner in an action entitled Smithson v Smithson, pending under Westchester County index No. 15317/05.
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. Spolzino, J.P., Skelos, Florio and Angiolillo, JJ., concur.