IN RE: Sang Seok NA (2024)

Petition seeking a writ of prohibition and mandamus to compel against respondents, unanimously denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order, Supreme Court, Bronx County [Allison Y. Tuitt, J.], entered February 3, 2023), dismissed, without costs.

Petitioner was required to commence this proceeding in this Court pursuant to CPLR 506(b)(1), as it involves claims against a Justice of the Supreme Court, New York County (see Matter of Baba v. Evans, 213 A.D.2d 248, 248, 624 N.Y.S.2d 18 [1st Dept. 1995], cert denied 520 U.S. 1254, 117 S.Ct. 2416, 138 L.Ed.2d 180 [1997]).  In the absence of subject matter jurisdiction, Supreme Court lacked the authority to exercise the transfer power conferred by CPLR 7804(b).  Nevertheless, we exercise our discretion to consider the petition on the merits (see Matter of Finley v. Nicandri, 272 A.D.2d 831, 832, 708 N.Y.S.2d 190 [3d Dept. 2000]).

Petitioner is not entitled to a writ of mandamus or prohibition, as he failed to meet his burden of demonstrating a “clear legal right” to the relief sought (see Matter of Council of City of N.Y. v. Bloomberg, 6 N.Y.3d 380, 388, 813 N.Y.S.2d 3, 846 N.E.2d 433 [2006]).  Rather, the petition seeks to compel respondents to perform discretionary acts, for which mandamus is unavailable (see Matter of Williamsburg Independent People, Inc. v. Tierney, 91 A.D.3d 538, 538, 938 N.Y.S.2d 5 [1st Dept. 2012];  see also Anonymous v. Commissioner of Health, 21 A.D.3d 841, 842, 801 N.Y.S.2d 302 [1st Dept. 2005]).  Additionally, other adequate remedies at law exist to obtain the relief sought (see Matter of Patel v. Shah, 115 A.D.3d 559, 559–560, 982 N.Y.S.2d 117 [1st Dept. 2014], lv. denied 23 N.Y.3d 907, 2014 WL 2922284 [2014];  see also Matter of Kyle v. Lebovits, 58 A.D.3d 521, 870 N.Y.S.2d 360 [1st Dept. 2009], lv denied 13 N.Y.3d 765, 886 N.Y.S.2d 865, 915 N.E.2d 1162 [2009], cert. denied 559 U.S. 938, 130 S.Ct. 1524, 176 L.Ed.2d 113 [2010]).

We have considered petitioner's remaining arguments and find them unavailing.