Matter of Johnson v Velasquez, 2016 NY Slip Op 07960 [144 AD3d 1037]

November 23, 2016

Appellate Division, Second Department

[*1]

In the Matter of Johnathan Johnson, Petitioner,

v

Carmen R. Velasquez, Respondent.

Johnathan Johnson, Malone, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Michael J. Siudzinski of counsel), for respondent.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent, a Justice of the Supreme Court, Queens County, to determine the petitioner’s motion for certain relief in an action entitled Johnson v R & G Gen. Constr. Co. , pending in that court under index No. 20061/12, 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., Dickerson, Hinds-Radix and Brathwaite Nelson, JJ., concur..