Matter of Butler v Zambelli, 2018 NY Slip Op 00551 [157 AD3d 949]

January 31, 2018

Appellate Division, Second Department

[*1]

In the Matter of Gary Butler, Petitioner,

v

Barbara Zambelli, a Judge of the County Court, Westchester County, and an Acting Justice of the Supreme Court, Westchester County, Respondent.

Gary Butler, Ossining, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, Barbara Zambelli, a Judge of the County Court, Westchester County, and an Acting Justice of the Supreme Court, Westchester County, to determine, on the merits, the petitioner’s motion dated December 27, 2016, 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 as academic; 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 failed to demonstrate a clear legal right to the relief sought. Balkin, J.P., Austin, Brathwaite Nelson and Christopher, JJ., concur..