Matter of Canestro v Pineda-Kirwan, 2015 NY Slip Op 07654 [132 AD3d 863]
October 21, 2015
Appellate Division, Second Department
[*1]
In the Matter of Anthony Canestro, Petitioner,
v
Diccia Pineda-Kirwan, a Justice of the Supreme Court, Queens County, et al., Respondents.
Jackson & Schwartz, LLP, Jericho, N.Y. (Henry J. Cernitz of counsel), for petitioner.
John W. McConnell, New York, N.Y. (Lee A. Adlerstein of counsel), for respondent Diccia Pineda-Kirwan.
Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Diccia Pineda-Kirwan, a Justice of the Supreme Court, Queens County, to determine a pending motion and cross motion in an underlying action entitled Pietrafesa v Canestro , pending in the Supreme Court, Queens County, under index No. 6281/12.
Adjudged that the petition and proceeding are dismissed insofar as asserted against the respondent Gene Pietrafesa, as executor of the estate of Marie Pietrafesa, without costs or disbursements; and it is further Adjudged that the petition is denied and the proceeding is dismissed on the merits insofar as asserted against the respondent Diccia Pineda-Kirwan, without costs or disbursements.
The petition and proceeding must be dismissed insofar as asserted against Pietrafesa, as he is neither a Judge of a County Court nor a Justice of the Supreme Court and, hence, this Court lacks subject matter jurisdiction over the proceeding insofar as asserted against him ( see CPLR 7804 [b]; 506 [b] [1]; Matter of Nolan v Lungen , 61 NY2d 788, 790 [1984]; Matter of Lawtone-Bowles v Klein , 131 AD3d 697 , 698 [2015]).
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]). With respect to the remaining respondent, the petitioner has failed to demonstrate a clear legal right to the relief sought. Dillon, J.P., Leventhal, Cohen and Maltese, JJ., concur..