Opinion
2020–04312
07-22-2020
In the Matter of Aaron BERGER, Petitioner, v. Devin P. COHEN, etc., Respondent.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn, N.Y. (Anthony J. Genovesi, Jr., and Amy Marion of counsel), for petitioner. Letitia James, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf & Carone, LLP, Brooklyn, N.Y. (Anthony J. Genovesi, Jr., and Amy Marion of counsel), for petitioner.
Letitia James, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION, ORDER & JUDGMENT
Proceeding pursuant to CPLR article 78, in effect, in the nature of mandamus to compel Devin P. Cohen, an Acting Justice of the Supreme Court, Kings County, to vacate a judgment dated February 3, 2020, issued in an action entitled Petrosian v. B & A Warehousing, Inc., pending in that court under Index No. 15209/2012. Motion by the petitioner, inter alia, for a preference in the calendaring of the petition.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied; and it is further,
ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, 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 Matter of Legal Aid Socy. of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542 ).
The petitioner has failed to demonstrate a clear legal right to the relief sought.
The petitioner's remaining contentions are without merit.
DILLON, J.P., LEVENTHAL, MALTESE and CHRISTOPHER, JJ., concur.