Law Offices of Russell I. Marnell, P.C. v. Blydenburgh

Feb 28, 2006
Versions:26 A.D.3d 495
809 N.Y.S.2d 470

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Donald R. Blydenburgh, a Justice of the Supreme Court, Suffolk County, to determine the petitioner‘s motion, submitted November 13, 2003, among other things, seeking to vacate the imposition of sanctions on the petitioner and the recusal of said Justice at any hearing on sanctions to be imposed on the petitioner in connection with his actions in an action entitled Kamen v Diaz-Kamen, pending in the Supreme Court, Suffolk County, under index No. 20461/01.

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. A written order deciding the motion shall be made within 10 days after service upon the respondent of a copy of this decision and judgment.

” ‘Mandamus will lie to compel the determination of a motion’ (Matter of Weinstein v Haft, 60 NY2d 625, 627 [1983]; see Matter of Greenfield, 76 NY2d 293 [1990]; Matter of Silk & Bunks v Greenfield, 102 AD2d 734 [1984]; 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 [or she] may exercise judgment or discretion (see Klostermann v Cuomo, 61 NY2d 525, 540 [1984]; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12 [1981]). ‘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’ (Klostermann, supra at 540, quoting People ex rel. Francis v Common Council of City of Troy, 78 NY 33, 39 [1879])” (Matter of DeCintio v Cohalan, 18 AD3d 872 [2005]).

Contrary to the respondent‘s contention, this motion has been fully submitted and the respondent is directed to make a determination thereon and issue a written order deciding it no later than 10 days after service upon him of a copy of this decision and judgment. Florio, J.P., Ritter, Goldstein and Covello, JJ., concur.