Murphy v. Camacho

179 A.D.3d 809

113 N.Y.S.3d 907 (Mem)

In the Matter of Thomas MURPHY, petitioner,

v.Fernando CAMACHO, etc., respondent.

2019-11461

Supreme Court, Appellate Division, Second Department, New York.

January 15, 2020

Steven M. Politi, Central Islip, NY, for petitioner.

Letitia James, Attorney General, New York, N.Y. (Melissa Ysaguirre of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & JUDGMENT

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 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542 ). "Because 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 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297 ; see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170 ). The petitioner has failed to demonstrate a clear legal right...