Matter of Sudbrink v Garguilo, 2021 NY Slip Op 04554 [196 AD3d 695]

July 28, 2021

Appellate Division, Second Department

[*1]

In the Matter of Michael Sudbrink, Petitioner,

v

Jerry Garguilo, an Associate Justice of the Appellate Term, 9th and 10th Judicial Districts, et al., Respondents.

Zev Goldstein, Monsey, NY, for petitioner.

Letitia James, Attorney General, New York, NY (Theodore D. Sklar of counsel), for respondent Jerry Garguilo.

Timothy D. Sini, District Attorney, Riverhead, NY (Alfred Croce of counsel), for respondent Suffolk County District Attorney.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Jerry Garguilo, an Associate Justice of the Appellate Term, 9th and 10th Judicial Districts, to grant the petitioner’s application for a certificate granting leave to appeal to the Appellate Term, 9th and 10th Judicial Districts, from an order of the Justice Court of the Village of Babylon, Suffolk County, dated July 17, 2019.

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.

The petitioner’s remaining contention is without merit. Rivera, J.P., Barros, Brathwaite Nelson and Dowling, JJ., concur..