Matter of Johnson v Dufficy, 2020 NY Slip Op 06527 [188 AD3d 884]

November 12, 2020

Appellate Division, Second Department

[*1]

In the Matter of Johnathan Johnson, Petitioner,

v

Timothy J. Dufficy et al., Respondents.

Johnathan Johnson, Malone, NY, petitioner pro se.

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

Melinda Katz, District Attorney, Kew Gardens, NY (Eunice Villantoy of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Timothy J. Dufficy, a Justice of the Supreme Court, Queens County, to determine a motion purportedly filed by the petitioner in a proceeding entitled Matter of Johnson v Ryan , commenced in that court under index No. 005085/2019, 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 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 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. Rivera, J.P., Cohen, Hinds-Radix and Iannacci, JJ., concur..