IN RE: Rosemary Chinye Okolie Toriola (2011)

DECISION & ORDER ON MOTION

Motion by the petitioner, in effect, for leave to reargue a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus which was determined by decision, order, and judgment of this Court dated August 30, 2011.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted, and upon reargument, the decision, order, and judgment of this Court dated August 30, 2011 (Matter of Toriola v. Flaherty, 87 AD3d 747), is recalled and vacated, and the following decision, order, and judgment is substituted therefor:

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent, Timothy J. Flaherty, a Justice of the Supreme Court, Queens County, to determine a motion made by the petitioner in underlying proceedings entitled Matter of Toriola v. Long Island LIJ, commenced in that court under Index No. 20556/09, and Matter of Toriola v Doar, commenced in this Court under Docket No. 2009–08265 and made returnable in the Supreme Court, Queens County, and application by the petitioner for poor person relief.

ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied;  and it is further,

ORDERED that the branch of the petition which is to compel Timothy J. Flaherty, a Justice of the Supreme Court, Queens County, to determine a motion made by the petitioner in the proceedings entitled Matter of Toriola v Long Island LIJ, and Matter of Toriola v Doar is dismissed as academic, without costs or disbursements, as that motion was determined by the Supreme Court on April 28, 2010;  and it is further,

ADJUDGED that the petition is otherwise denied and the proceeding is otherwise 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 where 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.

RIVERA, J.P., FLORIO, DICKERSON and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court