Matter of Rayside v. Modica ( 2016 )

Matter of Rayside v Modica (2016 NY Slip Op 07964)

Matter of Rayside v Modica

2016 NY Slip Op 07964

Decided on November 23, 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 November 23, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
THOMAS A. DICKERSON
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.

2016-08320 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Reynaldo Rayside, petitioner,

v

D. Modica, et al., respondents.

Reynaldo Rayside, East Elmhurst, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Anthony J. Tomari of counsel), for respondents.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Deborah Modica, sued herein as D. Modica, an Acting Justice of the Supreme Court, Queens County, to take certain actions in a criminal action entitled People v Rayside , pending under Queens County Indictment No. 71280/14, 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 Soc. of Sullivan County v Scheinman , 53 NY2d 12, 16). The petitioner has failed to demonstrate a clear legal right to the relief sought.

BALKIN, J.P., DICKERSON, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court