Opinion
2016–09550
07-18-2018
In the Matter of GEORGE C. (Anonymous), petitioner, v. Michael J. BRENNAN, etc., et al., respondents.
Mental Hygiene Legal Service, Mineola, N.Y. (Arthur A. Baer of counsel), for petitioner. Barbara D. Underwood, Attorney General, New York, N.Y. (Matthew Lawson of counsel), for respondent Kerry Delaney, Acting Commissioner of the New York State Office of Persons with Developmental Disabilities. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, David C. Kelly, Ann Bordley, and Avshalom Yotam of counsel), respondent pro se.
Mental Hygiene Legal Service, Mineola, N.Y. (Arthur A. Baer of counsel), for petitioner.
Barbara D. Underwood, Attorney General, New York, N.Y. (Matthew Lawson of counsel), for respondent Kerry Delaney, Acting Commissioner of the New York State Office of Persons with Developmental Disabilities.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, David C. Kelly, Ann Bordley, and Avshalom Yotam of counsel), respondent pro se.
SANDRA L. SGROI, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78, inter alia, in effect, in the nature of mandamus to compel the respondent Honorable Michael J. Brennan, a retired Justice of the Supreme Court, Kings County, to amend an order dated March 24, 2016, issued in an underlying action entitled People v. C. (Anonymous), pending in the Supreme Court, Kings County, under Indictment No. 9383/09, and in the nature of prohibition to prohibit the enforcement of the order dated March 24, 2016.
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 where there exists a clear legal right to the relief sought (see Legal Aid Soc'y of Sullivan County, Inc. v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542 ). "Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers" ( Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297 ; see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170 ). The petitioner failed to demonstrate a clear legal right to the relief sought.
SGROI, J.P., MALTESE, CONNOLLY and CHRISTOPHER, JJ., concur.