IN RE: Edwin Madden (2011)

DECISION, ORDER & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondents, Robert J. Miller, a Justice of the Supreme Court, Kings County, and the Chief Court Clerk of the Supreme Court, Kings County, inter alia, in effect, to concede that he has filed a notice of appeal from an order of the Supreme Court, Kings County, dated May 11, 2010, and to determine the petitioner's motion for leave to reargue and renew a prior motion.   Application by the petitioner to prosecute this proceeding as a poor person.

ORDERED that the application to prosecute this proceeding as a poor person is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied as academic;  and it is further,

ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, 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 Socy. of Sullivan County v Scheinman, 53 N.Y.2d 12, 16).   The petitioner has failed to demonstrate a clear legal right to the relief sought.

MASTRO, J.P., SKELOS, LEVENTHAL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court