Matter of Berger v Cohen, 2020 NY Slip Op 04159 [185 AD3d 921]

July 22, 2020

Appellate Division, Second Department

[*1]

In the Matter of Aaron Berger, Petitioner,

v

Devin P. Cohen, Respondent.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn, NY (Anthony J. Genovesi, Jr., and Amy Marion of counsel), for petitioner.

Letitia James, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent.

Proceeding pursuant to CPLR article 78, in effect, in the nature of mandamus to compel Devin P. Cohen, an Acting Justice of the Supreme Court, Kings County, to vacate a judgment dated February 3, 2020, issued in an action entitled Petrosian v B&A Warehousing, Inc. , pending in that court under index No. 15209/2012. Motion by the petitioner, inter alia, for a preference in the calendaring of the petition.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is Ordered that the motion is denied; and it is further, 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 contentions are without merit. Dillon, J.P., Leventhal, Maltese and Christopher, JJ., concur..