By ex parte application filed on February 8, 2013, petitioner, 964 Dean Acquisition Group, seeks an order pursuant to CPLR 2001 directing the clerk of the Subpoena Record room of the New York State Supreme Court of Kings County (hereinafter subpoena clerk) to enter trial subpoenas served in the instant action.

MOTION PAPERS

The instant motion consists of a proposed order, an affirmation of the petitioner's counsel and one annexed exhibit labeled A. Exhibit A contains six trial subpoenas duces tecum.

LAW AND APPLICATION

Petitioner's counsel states that the matter is a special proceeding, commenced by order to show cause and petition, which seeks a turn over of assets from respondent judgment-debtor Dennis Thomas and Curtis Duncan. Petitioner has not annexed a copy of the commencement papers to the motion.

Petitioner's counsel also avers that he was advised of a practice by the subpoena clerk to delay entering subpoenaed records that are in its possession until a note of issue is filed. Petitioner contends that this practice unnecessarily delays its access to the records. Petitioner does not explain what the act of entering a record entails.

Petitioner has moved ex parte and pursuant to CPLR 2001 for an order directing the subpoena clerk to promptly enter the records it has received in response to trial subpoenas rather than wait for a note of issue to be filed to enter the documents. Contrary to the petitioner's contention, the relief it seeks may not be obtained by an ex parte application. Petitioner seeks an [*2]order directing a governmental body to perform what the petitioner has characterized as a purely ministerial act. Without addressing petitioner's claim of the ministerial nature of the act in question, the relief sought must be pursued through the procedural vehicle of an Article 78 proceeding for mandamus to compel.

Mandamus to compel is a judicial command to an officer or body to perform a specified ministerial act that is required by law to be performed (see Hamptons Hospital & Medical Center, Inc. v Moore, 52 NY2d 88, 96 [1981]). Furthermore, unless the court grants an order to show cause to be served in lieu of a notice of petition, such a proceeding must be commenced by notice of petition and verified petition served, at the very least, on the party sought to be compelled, if not others (see CPLR 7804[c]). The instant application does not comply with the requirements for mandamus to compel.

Furthermore, petitioner has cited CPLR 2001 in support of the instant motion. CPLR 2001 pertains to the court's power to ignore or correct mistakes, omissions, defects and irregularities at any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action. CPLR 2001 does not apply to the relief sought herein.

For the foregoing reasons, petitioner's ex parte application is denied without prejudice.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.