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Pettus v. Justices of Kings County and Supreme Court

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


November 4, 2009

IN THE MATTER OF JAMES PETTUS, PETITIONER,
v.
JUSTICES OF KINGS COUNTY AND SUPREME COURT, RESPONDENTS.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel a Justice of the Supreme Court, Kings County, to accept for filing the summons and complaint in an action entitled Pettus v City of New York, under Index No. 21369/07, without payment of the filing fee, and application by the petitioner for poor person relief.

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.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, THOMAS A. DICKERSON and PLUMMER E. LOTT, JJ.

DECISION, ORDER & JUDGMENT

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, without costs or disbursements.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when 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.

FISHER, J.P., COVELLO, DICKERSON and LOTT, JJ., concur.

20091104

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