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Jivani v. O'Donoghue

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


November 24, 2009

IN THE MATTER OF ASLAM A. JIVANI, ETC., PETITIONER,
v.
PETER J. O'DONOGHUE, ETC., ET AL., RESPONDENTS.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Peter J. O'Donoghue, a Justice of the Supreme Court, Queens County, to determine a motion and cross motion in an underlying action entitled Gisburne v St. John's Queens Hospital, pending in the Supreme Court, Kings County, under Index No. 25725/08.

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.

REINALDO E. RIVERA, J.P., HOWARD MILLER, THOMAS A. DICKERSON & SHERI S. ROMAN, JJ.

DECISION & JUDGMENT

ADJUDGED that the petition is denied and the proceeding is dismissed, with one bill of costs to the respondents.

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to the relief sought, as, before this proceeding was commenced, the subject motion and cross motion had been deemed withdrawn in an order of the Supreme Court, Kings County, dated September 9, 2009. To the extent that the petitioner contends that the order dated September 9, 2009, erroneously deemed the motion and cross motion withdrawn, his remedy is to move in the Supreme Court, Kings County, to vacate that order.

RIVERA, J.P., MILLER, DICKERSON and ROMAN, JJ., concur.

20091124

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