Hammond v. DeLury

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to issue a decision on a motion filed by the petitioner pursuant to CPL article 440.

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

*837Adjudged 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 Socy. v Scheinman, 53 NY2d 12, 16). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Sullivan, J. P., Balletta, Lawrence and Florio, JJ., concur.