Smithson v. Tolbert

Proceeding pursuant to CFLR article 78 in the nature of mandamus, inter alia, to compel the respondent Bruce E. Tolbert, a Justice of the Supreme .Court, Westchester County, to enter a judgment of divorce in favor of the petitioner in an action entitled Smithson v Smithson, pending under Westchester County index No. 15317/05.

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. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Spolzino, J.P., Skelos, Florio and Angiolillo, JJ., concur.