Myron v. Kelly (259 A.D.2d 487, 1999)

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to recuse himself in a criminal proceeding entitled People v Myron, pending in County Court, Rock-land County, under Indictment No. 97-00085, and for poor person relief.

Cross motion by the respondent to dismiss the proceeding.

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

Ordered that the cross motion is granted; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The branch of the petition which seeks to compel the respondent to recuse himself is academic in light of an order of the County Court, Rockland County, dated November 2, 1998. The remaining branches of the petition must also be dismissed since 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. Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.