Matter of Morse v. Bailey-Schiffman , 37 N.Y.S.3d 907 ( 2016 )

Matter of Morse v Bailey-Schiffman (2016 NY Slip Op 06218)

Matter of Morse v Bailey-Schiffman

2016 NY Slip Op 06218

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
THOMAS A. DICKERSON, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
COLLEEN D. DUFFY, JJ.

2016-05973

[*1]In the Matter of Melody Morse, petitioner,

v

Loren Bailey-Schiffman, etc., et al., respondents. Melody Morse, West Hempstead, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondents Loren Baily-Schiffman, sued herein as Loren Bailey-Schiffman, and David Schmidt.

Traub Lieberman Straus & Shrewsberry LLP, sued herein as Traub, Lieberman, Straus & Shrewsberry, Hawthorne, NY (Lisa L. Shrewsberry of counsel), respondent pro se and for respondent Megan Bronk.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the issuance of certain judgments in an action entitled Morse v Lee , pending in the Supreme Court, Kings County, under Index No. 501694/14, and a proceeding entitled Matter of Morse v Bronk, pending in that court under Index No. 13140/15, and in the nature of prohibition to preclude the respondent Loren Baily-Schiffman, sued herein as Loren Bailey-Schiffman, a Justice of the Supreme Court, Kings County, from presiding over that action and that proceeding.

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). Moreover, "[b]ecause of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers" (Matter of Holtzman v Goldman , 71 NY2d 564, 569; see Matter of Rush v Mordue , 68 NY2d 348, 352).

The petitioner has failed to establish a clear legal right to the relief sought.

DICKERSON, J.P., COHEN, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court