Petulla v. Petulla

Jun 14, 2011
Versions:85 A.D.3d 925
925 N.Y.S.2d 338

In the Matter of SYLVIA OLIVER, Petitioner, v RICHARD VELASQUEZ, Respondent. [925 NYS2d 337]—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, in effect, to compel the respondent to determine the petitioner‘s motion for leave to enter a default judgment against the defendants in an action entitled Oliver v Commissioner of Dept. of Fin., pending in the Supreme Court, Kings County, under index No. 17394/10, 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,

Ordered that the branch of the petition which is to compel the respondent to determine the petitioner‘s motion for leave to enter a default judgment against the defendants in an action entitled Oliver v Commissioner of Dept. of Fin., pending in the Supreme Court, Kings County, under index No. 17394/10, is dismissed as academic, without costs or disbursements, as that motion was determined by the Supreme Court on April 28, 2011; and it is further,

Adjudged that the petition is otherwise denied and the proceeding is dismissed, without costs or disbursements.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when 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. Dillon, J.P., Leventhal, Hall and Lott, JJ., concur.