IN RE: Nilda PIALI (1999)

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent Phyllis Orlikoff-Flug to (1) determine the petitioner's motion to hold the respondent Thomas Piali in contempt of court for failure to comply with discovery orders in an action entitled Thomas Piali v. Nilda Piali, pending in the Supreme Court, Queens County, and (2) hold a hearing to resolve, among other things, contested issues of fact concerning Thomas Piali's failure to comply with said discovery orders.

Motion by the respondents Phyllis Orlikoff-Flug and Stanley Gartenstein to dismiss the proceeding.

ORDERED that the motion is granted;  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 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542).   The petitioner has failed to demonstrate a clear legal right to the relief sought.

In addition, the Supreme Court, Queens County, has issued an order dated May 24, 1999, denying the petitioner's motion to hold Thomas Piali in contempt of court.   Accordingly, the proceeding must also be dismissed as academic.

MEMORANDUM BY THE COURT.