DeCintio v. Cohalan
795 N.Y.S.2d 459
N.Y. App. Div.
2005
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In the Matter of ANTHONY J. DECINTIO, Petitioner, v PETER FOX COHALAN, as Justice of the Supreme Court of the State of New York, et al., Respondents.

Suffolk County index No. 13972/98

Supreme Court of the State of New York, Appellate Division

795 NYS2d 459

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Peter Fox Cohalan, a Justice of the Supreme Court, Suffolk County, to determine the petitioner‘s motion to vacate a judgment of the same court entered June 26, 2003, upon his default in appearing at a conference, in an action entitled Catania v DeCintio, under Suffolk County index No. 13972/98.

Motion by the respondent Andrew J. Schatkin, inter alia, to dismiss the proceeding insofar as asserted against him as time-barred.

Ordered that the motion is denied; and it is further,

Adjudged that the petition is granted, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the petitioner‘s motion.

“Mandamus will lie to compel the determination of a motion” (

; see
;
; see also CPLR 2219 [a]). A judicial officer may be compelled to perform a ministerial duty prescribed by law, but not an act in respect to which he may exercise judgment or discretion (see
;
). “The writ of mandamus . . . may [therefore] . . . be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide in a particular manner” (
, quoting
).

Moreover, contrary to the respondents’ contention, “where a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring within the limitations period” (

; see
;
). “[W]here, as here, the practice complained of is a continuing one and is in violation of the New York State Constitution, the right to relief will not be barred by the four-month Statute of Limitations” (
). Finally, under the circumstances, the delay in commencing the proceeding was not so extensive as to bar the proceeding by the doctrine of laches (see
).

Schmidt, J.P., Adams, Cozier and S. Miller, JJ., concur.