Matter of Contant v. Kelly , 153 A.D.3d 520 ( 2017 )

Matter of Contant v Kelly (2017 NY Slip Op 05951)

Matter of Contant v Kelly

2017 NY Slip Op 05951

Decided on August 2, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 2, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
SHERI S. ROMAN
FRANCESCA E. CONNOLLY
BETSY BARROS, JJ.

2017-03374 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Isan Contant, petitioner,

v

William A. Kelly, etc., respondent. Isan Contant, Mt. Lambert, Trinidad and Tobago, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Alissa S. Wright of counsel), for respondent.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, a Justice of the Supreme Court, Rockland County, to hold a hearing on the petitioner's motion pursuant to CPL 440.20 to vacate a judgment of that court rendered October 3, 2007, in a criminal action entitled People v Contant , brought under Rockland County Indictment No. 06-00362, and application by the petitioner for leave to prosecute the proceeding as a poor person.

ORDERED that the application for leave to prosecute the proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied as academic; 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). The petitioner has failed to demonstrate a clear legal right to the relief sought.

HALL, J.P., ROMAN, CONNOLLY and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court