Matter of Elmustapha v. D'Emic , 37 N.Y.S.3d 905 ( 2016 )

Matter of Elmustapha v D'Emic (2016 NY Slip Op 06214)

Matter of Elmustapha v D'Emic

2016 NY Slip Op 06214

Decided on September 28, 2016

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 September 28, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
JOHN M. LEVENTHAL
SYLVIA O. HINDS-RADIX
FRANCESCA E. CONNOLLY, JJ.

2016-06733 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Lablidi Elmustapha, petitioner,

v

Matthew J. D'Emic, etc., et al., respondents.

Lablidi Elmustapha, East Elmhurst, NY, petitioner pro se.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Matthew J. D'Emic, a Justice of the Supreme Court, Kings County, to dismiss the indictment in a certain criminal action pending in the Supreme Court, Kings County, 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). The petitioner has failed to demonstrate a clear legal right to the relief sought.

ENG, P.J., LEVENTHAL, HINDS-RADIX and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court