Matter of Kelly v Leo, 2019 NY Slip Op 05663 [174 AD3d 712]

July 17, 2019

Appellate Division, Second Department

[*1]

In the Matter of James Kelly, Petitioner,

v

John J. Leo, a Justice of the Supreme Court, Suffolk County, Respondent.

James Kelly, Selden, NY, petitioner pro se.

Letitia James, Attorney General, New York, NY (Carly Weinreb of counsel), for respondent.

Proceeding pursuant to CPLR article 78 in the nature of mandamus and prohibition, inter alia, to compel the respondent, John L. Leo, a Justice of the Supreme Court, Suffolk County, to recuse himself from presiding over an action entitled Spata v Kelly , pending in that court under index No. 17657/14.

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]). “Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” ( Matter of Holtzman v Goldman , 71 NY2d 564, 569 [1988]; see Matter of Rush v Mordue , 68 NY2d 348, 352 [1986]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Scheinkman, P.J., Dillon, Miller and LaSalle, JJ., concur..