| Matter of Basile v Nicolai |
| 2014 NY Slip Op 01605 [115 AD3d 742] |
| March 12, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Christopher Basile,
Petitioner, v Francis A. Nicolai et al., Respondents. |
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Eric T. Schneiderman, Attorney General, New York, N.Y. (Anthony J. Tomari of
counsel), for respondent Francis A. Nicolai.
Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent Francis A. Nicolai, a Justice of the Supreme Court, Westchester County, to vacate an order of protection dated January 14, 2014, and entered in a matrimonial action entitled Basile v Webb, commenced in that court under index No. 11621/04, and application by the petitioner for poor person relief.
Ordered that the application for poor person relief 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 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Eng, P.J., Dillon, Maltese and Duffy, JJ., concur.