Matter of Platt v Garnett, 2016 NY Slip Op 08080 [144 AD3d 1162]

November 30, 2016

Appellate Division, Second Department

[*1]

In the Matter of Michael Platt, Petitioner,

v

William E. Garnett, an Acting Justice of the Supreme Court, Richmond County, et al., Respondents.

Michael Platt, Sonyea, NY, petitioner pro se.

John W. McConnell, New York, NY (Margaret W. Martin of counsel), for respondent William E. Garnett.

Eric T. Schneiderman, Attorney General, New York, NY (Thomas B. Litsky pro se and Lisa Ellen Fleischmann of counsel), for respondent Thomas B. Litsky.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent William E. Garnett, an Acting Justice of the Supreme Court, Richmond County, inter alia, to vacate an order dated February 23, 2016, made in a criminal action entitled People v Platt , commenced in that court under indictment No. 15/09, 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; 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 has failed to demonstrate a clear legal right to the relief sought. Hall, J.P., Sgroi, Maltese and Duffy, JJ., concur..