IN RE: Scottie Morrison (2011)

Submitted-February 10, 2011

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the initiation of a criminal prosecution, the petitioner appeals from a judgment of the Supreme Court, Kings County (Kramer, J.), dated January 20, 2009, which, in effect, denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, without costs or disbursements.

The extraordinary remedy of a writ of mandamus is available in limited circumstances only to compel the performance of a purely ministerial act which does not involve the exercise of official discretion or judgment, and only when a clear legal right to the relief sought has been demonstrated (see Klostermann v. Cuomo, 61 N.Y.2d 525, 537;  Matter of Salisbury v. Lapidez, 277 A.D.2d 319;  Matter of Kusky v. Town of Islip, 266 A.D.2d 460, 461;  Matter of Perazzo v. Lindsay, 30 A.D.2d 179, affd 23 N.Y.2d 764).   Here, the petitioner seeks to compel the performance of acts involving the exercise of official discretion or judgment (see Matter of Nieblas v Kings County Dist. Attorney, 209 A.D.2d 703;  People ex rel. Doe v. Beaudoin, 102 A.D.2d 359, 365;  see also Sassower v Commission on Jud. Conduct of State of N.Y., 289 A.D.2d 119) and, thus, the remedy of mandamus is not available.

The petitioner's remaining contentions are either without merit or not properly before this Court.

Accordingly, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding.

PRUDENTI, P.J., ENG, BELEN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court