McFadden v. Kelly

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent Judge of the County Court, Rockland County, in effect, to grant his motion pursuant to CPL 440.10 to vacate a judgment of the same court, rendered September 7, 1995, and application for poor person relief.

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

*499Ordered that the application for poor person relief is granted; and it is further,

Adjudged 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 has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., O’Brien, Ritter and McGinity, JJ., concur.