IN RE: Jeffrey Horowitz (2011)

Submitted-February 4, 2011

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent to conduct a further investigation into an alleged criminal offense, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Ruchelsman, J.), dated April 28, 2010, which granted the respondent's motion to dismiss the proceeding on the merits and dismissed the proceeding.

ORDERED that the order and 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 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 Bullion v. Safir, 249 A.D.2d 386;  Matter of Peirez v. Caso, 72 A.D.2d 797).   Here, the petitioner sought to compel the respondent to perform the discretionary act of continuing the investigation of an alleged larceny of a relatively small amount of money that occurred in 2006, in the hope that the investigation may allow the petitioner to expose alleged widespread nursing home abuses.   Since the conduct which the petitioner sought to compel clearly involves the application of police discretion and judgment, the remedy of mandamus was not available (see e.g. Matter of Walsh v. LaGuardia, 269 N.Y. 437;  Matter of Okslen Acupuncture, P.C. v Dinallo, 77 AD3d 451, 452;  Matter of Grzyb v. Constantine, 182 A.D.2d 942;  Matter of Young v. Town of Huntington, 121 A.D.2d 641, 642;  Matter of Perazzo v. Lindsay, 30 A.D.2d 179, 180, affd 23 N.Y.2d 764).   Accordingly, the Supreme Court properly granted the respondent's motion to dismiss the proceeding on the merits, and dismissed the proceeding.

MASTRO, J.P., SKELOS, ENG and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court