Matter of Murphy v Camacho, 2020 NY Slip Op 00279 [179 AD3d 809]

January 15, 2020

Appellate Division, Second Department

[*1]

In the Matter of Thomas Murphy, Petitioner,

v

Fernando Camacho, a Justice of the Supreme Court, Suffolk County, Respondent.

Steven M. Politi, Central Islip, NY, for petitioner.

Letitia James, Attorney General, New York, NY (Melissa Ysaguirre of counsel), for respondent.

Proceeding pursuant to CPLR article 78 in the nature of mandamus and prohibition, inter alia, in effect, to compel the respondent, Fernando Camacho, a Justice of the Supreme Court, Suffolk County, to recuse himself from presiding over an action entitled People v Murphy , pending in that court under indictment No. 1868/18.

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. Chambers, J.P., Austin, Miller and Christopher, JJ., concur..