Matter of Pelczar v Kelly, 2015 NY Slip Op 06671 [131 AD3d 700]

August 26, 2015

Appellate Division, Second Department

[*1]

In the Matter of James Frederic Pelczar, Petitioner,

v

Peter J. Kelly, Respondent.

James Frederic Pelczar, Tokyo, Japan, petitioner pro se.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, Peter J. Kelly, the Surrogate of Queens County, to dismiss a proceeding entitled Estate of Pelczar , pending in the Surrogate’s Court, Queens County, under file No. 2014-2284.

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 has failed to demonstrate a clear legal right to the relief sought. Leventhal, J.P., Dickerson, Roman and Hinds-Radix, JJ., concur..