McFadden v. Belfi ( 1997 )

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to "obtain judicial intervention” concerning an order of the County Court, Nassau County, dated January 17, 1997, which denied the petitioner’s motion pursuant to CPL article 440.10, and application for poor person relief.

Motion by the respondent to dismiss the proceeding for lack of jurisdiction and for failure to state a cause of action.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto and in support of the motion, it is

Ordered that the application for poor person relief is granted; and it is further,

Ordered that the motion is granted; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The petitioner failed to obtain subject matter jurisdiction over the respondent. Moreover, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., O’Brien, Ritter and McGinity, JJ., concur.