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In re Vidurek

Supreme Court of New York, Third Department

July 11, 2013

In the Matter of JOHN VIDUREK et al., Petitioners,
v.
NEW YORK SUPREME COURT, ALBANY COUNTY, Respondent, and JOSEPH C. TERESI, as Justice of the Supreme Court, Respondent.

Calendar Date: May 21, 2013

John Vidurek, Hyde Park, petitioner pro se.

Gerard Aprea, Round Top, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for Joseph C. Teresi, respondent.

Before: Rose, J.P., Spain, McCarthy and Egan Jr., JJ.

MEMORANDUM AND JUDGMENT

Spain, J.

Proceeding pursuant to CPLR 78 (initiated in this Court pursuant to CPLR 506 [b] [1]) to compel respondent Justice of the Supreme Court to comply with an order issued by petitioners.

Respondent Justice of the Supreme Court (hereinafter respondent) dismissed petitioners' third pro se action against, among others, the State Board of Elections, which advanced the same claims that we recently found to be not viable in Aprea v New York State Bd. of Elections (103 A.D.3d 1059 [2013]). Thereafter, petitioners filed a fictitious "court order, " issued by their self-proclaimed "court of record, " which, among other things, purported to order respondent to reinstate their action. Upon respondent's dismissal of that filing, petitioners commenced this proceeding seeking a writ of mandamus to, among other relief, compel respondent to rescind the order that dismissed their action.

Initially, petitioners cannot use a collateral CPLR article 78 proceeding seeking the extraordinary remedy of mandamus to, in effect, challenge respondent's order dismissing their complaint; the proper remedy would be a direct appeal of that order (see Matter of Dyno v Rose, 260 A.D.2d 694, 697 [1999], appeal dismissed 93 N.Y.2d 998 [1999], lv denied 94 N.Y.2d 753 [1999]; Matter of Jemzura v Mugglin, 207 A.D.2d 645, 646 [1994], appeal dismissed 84 N.Y.2d 977 [1994]; Matter of Ferguson v Cheeseman, 138 A.D.2d 852, 853 [1988]). In any event, petitioners have absolutely no legal right to create a new court of record or to issue court orders (see NY Const, art VI, § 1 [a], [b]; Judiciary Law § 2). Moreover, "the remedy of mandamus is not available to compel a judicial officer to render a decision with a particular outcome where[, as here, ] the decision involves the exercise of discretion or judgment and is not merely a ministerial act required by law" (Matter of Dyno v Rose, 260 A.D.2d at 697; see Matter of Vicinanzo v Best, 249 A.D.2d 739, 740 [1998]; Matter of Abbott v Conway, 148 A.D.2d 909, 910 [1989], lv denied 74 N.Y.2d 608 [1989]). Accordingly, petitioners are not entitled to the extraordinary remedy of mandamus. While we decline, at this juncture, to prohibit petitioners from commencing related proceedings in this Court, petitioners are warned that further frivolous conduct will result in sanctions (see 22 NYCRR 130-1.1 [a], [c]; Matter of Jemzura v Mugglin, 207 A.D.2d at 647). [1]

Rose, J.P., McCarthy and Egan Jr., JJ., concur.

ADJUDGED that the petition is dismissed, without costs.


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