Petitioner commenced this CPLR article 78 proceeding seeking to compel respondents New York State Department of Health (DOH) and the City Clerk of the City of Yonkers, New York to create and issue twelve copies of a long-form delayed birth certificate for his paternal grandfather, Raphael Albert Macaruso. Respondent DOH has answered and opposes the petition. Respondent City Clerk of the City of Yonkers, New York has not appeared. Because petitioner has not demonstrated a clear legal right to the relief he requests, the petition is denied.

According to petitioner, his paternal grandfather, Raphael Albert Macaruso, was born in the City of Yonkers in 1901. In 1901, DOH did not maintain records for births that occurred in the City of Yonkers; rather, the City maintained such records. Neither the City of Yonkers nor DOH possess a birth certificate for Mr. Macaruso, who died in 1970.

On or about April 1, 2019, seeking to document his Italian lineage in support of his sons' applications for dual Italian citizenship, petitioner applied to DOH for the issuance of a delayed birth certificate for Mr. Macaruso.^[FN1] By letter dated April 8, 2019, DOH advised petitioner that it did not maintain birth records for persons born in Yonkers prior to 1914; such records would be maintained by the City of Yonkers; and DOH could not create a birth record under the applicable regulations (see 10 NYCRR part 36). Petitioner thereafter commenced this CPLR article 78 proceeding seeking an order compelling respondents to create and issue twelve copies of a long-form delayed birth certificate for Mr. Macaruso.

A writ of mandamus "is an extraordinary remedy that is available only in limited circumstances" (Matter of Alliance to End Chickens as Kaporos v New York City Police Dept., 32 NY3d 1091, 1093 [2018], cert denied 139 S Ct 2651 [2019], reh denied 140 S Ct 18 [2019] [internal quotation marks and citations omitted]). "Such remedy will lie 'only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law'" (id., quoting New York Civ. Liberties Union v State of New York, 4 NY3d 175 [2005], rearg denied 4 NY3d 882 [2005]; see also CPLR 7803 [1]). "While mandamus to compel is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which [a public] officer may exercise judgment or discretion" (id. [internal quotation marks and citations omitted]). "Discretionary acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" (id. [internal quotation marks and citations omitted]).

Public Health Law § 4175 (1) provides:

"If, at any time after the birth . . . of any person within the state, a certified copy of the official record of said birth or death, with the information required to be registered by this article, is necessary for legal, judicial, or other proper purposes, and, after search by the commissioner or his or her representatives, it appears that no such certificate of birth or death was made and filed as provided by this article, then the commissioner shall immediately require the physician, nurse practitioner, or nurse-midwife who, being in attendance upon a birth, failed or neglected to file a certificate thereof . . . if he or she is living, to obtain and file at once with the local registrar such certificate in as complete form as the lapse of time will permit."

The person who attended the birth must submit a statement affirming the facts underlying the birth under penalties of perjury (see Public Health Law 4175 § [2]). If the professional who attended the birth is deceased or cannot be located, "the person making application for the certified copy of the record may file such certificate of birth or death together with such statements subscribed and affirmed by the persons making them as true under the penalties of perjury and other evidence as the [C]ommissioner [of DOH] may require" (Public Health Law § 4175 [3]).

The Commissioner's implementing regulations are found at 10 NYCRR [*3]part 36. A "[d]elayed registration of birth is the registration of a birth one year or more after its occurrence" (10 NYCRR 36.1 [a]). "If the physician or licensed midwife who attended the birth is alive and can be located, the certificate shall be made by such physician or licensed midwife" (10 NYCRR 36.5). "If the physician or midwife who attended the birth has died or cannot be located, or if the birth was not attended professionally, the certificate of birth shall be made by one of the parents" (10 NYCRR 36.6). "If the physician or midwife who attended the birth has died or cannot be located and if neither parent can be conveniently reached or if both parents have died, . . . [i]f the person who birth is desired to be registered is 18 years of age or over, the certificate shall be made by that person" (10 NYCRR 16.7 [b]). "Each application for the delayed registration on an unrecorded birth shall be accompanied by a statement issued either by the local registrar of the community where the birth is believed to have occurred or by the State Department of Health to the effect that a search of the records has been made and that no record bearing the name of the person whose birth is to be recorded was found" (10 NYCRR 36.10).

Petitioner's claim seeking an order directing respondents to issue and provide twelve copies of a long-form delayed birth certificate for Mr. Macaruso sounds in the nature of mandamus to compel. Petitioner does not challenge as arbitrary and capricious a discretionary, administrative determination by DOH; instead he challenges DOH's alleged omission to act (see Matter of Mental Hygiene Legal Service v Delaney, 176 AD3d 24, 32-33 [3d Dept 2019]). "Mandamus to compel is 'an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought'" (Matter of Curry v New York State Educ. Dept., 163 AD3d 1327, 1330 [3d Dept 2018], quoting Matter of Shaw v King, 123 AD3d 1317, 1318-1319 [3d Dept 2014]; see Matter of Mental Hygiene Legal Serv. v Daniels, 33 NY3d 44, 66 [2019]).

Petitioner has not demonstrated a clear legal right to the relief sought. Where a health professional has not filed a certificate of birth, the statute permits another to prepare such certificate as provided under the Commissioner's regulations. Reflecting the statutory requirement that the affiant be able to affirm facts under penalty of perjury, the Commissioner's regulations, which petitioner does not directly challenge, limit such certificates to those filed by the parents of the person, or the person himself. As respondent explains, DOH is charged with maintaining the integrity of such vital public health records. Nothing in the Public Health Law or [*4]Commissioner's regulations compels DOH to create or issue a delayed birth certificate to an individual like petitioner, who wants to establish descendance from one born more than a century ago. As petitioner is neither a public health professional who assisted in the birth, nor a parent of the person or person for whom the birth certificate is sought, he has established no clear legal right to the relief he requests.^[FN2]

While the Court is sympathetic to petitioner's attempt to document his Italian lineage and establish dual citizenship for his children, the statute and regulations governing the creation and issuance of delayed birth certificates do not appear to authorize, let alone require, the Commissioner of DOH to do so under these circumstances.

Accordingly, it is

Ordered and Adjudged that the petition for mandamus to compel the Commissioner of DOH to create and issue certified copies of a delayed birth certificate for Raphael Albert Macaruso is denied; and it is

Ordered and Adjudged that the petition for mandamus to compel the City of Yonkers to create and issue certified copies of a delayed birth certificate for Raphael Albert Macaruso is denied; and it is

Ordered that, because the documents filed in this matter contain confidential personal information, the Office of the Albany County Clerk is hereby directed to restrict the public's access and public viewing of said documents, which may only be accessed and viewed by the parties, parties' counsel, and court personnel.

This constitutes the decision and judgment of the Court. The decision and judgment is being transmitted electronically to all counsel. The Court will transmit the original decision and judgment containing the Judge's original signature, along with all original filings, to the County Clerk as circumstances allow, given the current restrictions arising from the COVID-19 pandemic. The signing of this decision and judgment does not constitute entry or filing under CPLR 2220 and 5016 and counsel are not relieved from the applicable rules respecting filing and service.

1. Notice of Petition, undated;

2. Verified Petition, verified on April 19, 2019, with Exhibits A-I;

3. Verified Answer, dated August 2, 2019;

4. Letter from AAG Melissa Latino, dated August 2, 2019;

5. Affirmation of Robert Jake Locicero, dated July 29, 2019, with Exhibits A-B;

6. Respondent Department of Health's Memorandum of Law, dated August 2, 2019;

7. Verified Reply, dated December 16, 2019, with Exhibits A-C.