Gibbs v. Vaughan

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to direct “the trial court to grant a ‘rehearing of the original two motions, submitted by the petitioner. A motion to dismiss a count of the indictment under CPL 210.20, 210.25 as deemed defective.’ ”

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

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., Copertino, Altman and Gold-stein, JJ., concur.