Matter of Cuffy v. Pesce ( 2019 )

Matter of Cuffy v Pesce (2019 NY Slip Op 08668)

Matter of Cuffy v Pesce

2019 NY Slip Op 08668

Decided on December 4, 2019

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 December 4, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.

2019-05262

[*1]In the Matter of Perry Cuffy, petitioner,

v

Michael L. Pesce, et al., respondents.

Susannah Karlsson, Brooklyn, NY, for petitioner.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondents, justices of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts, to assign counsel to the petitioner on his prosecution of an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered November 26, 2018, and for declaratory relief, and application by the petitioner 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 Legal Aid Soc'y of Sullivan County, Inc. v Scheinman , 53 NY2d 12, 16). The petitioner failed to demonstrate a clear legal right to the relief sought. In addition, the petitioner cannot seek declaratory relief in a CPLR article 78 proceeding (see CPLR 3017).

RIVERA, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court