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Madden v. Knipel

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


March 30, 2010

IN THE MATTER OF EDWIN MADDEN, PETITIONER,
v.
LAWRENCE KNIPEL, ETC., RESPONDENT.

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, Lawrence Knipel, a Justice of the Supreme Court, Kings County, to determine the petition in an underlying proceeding pursuant to CPLR article 78 entitled Matter of Madden v Hynes, pending in the Supreme Court, Kings County, under Index No. 9058/09, 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.

MARK C. DILLON, J.P., FRED T. SANTUCCI, RUTH C. BALKIN and SANDRA L. SGROI, 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 Society of Sullivan County v Scheinman, 53 NY2d 12, 16). Here, the Supreme Court scheduled March 19, 2010, as the return date for its consideration of the petition in the underlying proceeding pursuant to CPLR article 78. Since less than 60 days have elapsed since the underlying proceeding pursuant to CPLR article 78 was submitted for determination (see CPLR 2219[a]; Slavuter v Slavuter, 304 AD2d 820, 821), the petitioner has failed to demonstrate a clear legal right to the relief sought.

DILLON, J.P., SANTUCCI, BALKIN and SGROI, JJ., concur.

20100330

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