Opinion
2015-01775.
10-14-2015
In the Matter of Gary LIANG, petitioner, v. Duane A. HART, etc., et al., respondents.
Wang Law Office PLLC, Flushing, N.Y. (Chunyu Jean Wang of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Anthony J. Tomari of counsel), for respondent Duane A. Hart.
Wang Law Office PLLC, Flushing, N.Y. (Chunyu Jean Wang of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Anthony J. Tomari of counsel), for respondent Duane A. Hart.
JOHN M. LEVENTHAL, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.
Opinion Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Duane A. Hart, a Justice of the Supreme Court, Queens County, to determine four pending motions, fully submitted on June 17, 2013, July 24, 2013, November 26, 2013, and June 19, 2014, respectively, in an underlying action entitled Liang v. Yi Jing Tan, pending in the Supreme Court, Queens County, under Index No. 8155/12.
ADJUDGED that the petition is granted insofar as asserted against the respondent Duane A. Hart, on the law, without costs or disbursements, and the respondent Duane A. Hart is directed to issue written orders within 30 days of this decision and judgment determining the four fully submitted motions pending in the underlying action entitled Liang v. Yi Jing Tan, pending in the Supreme Court, Queens County, under Index No. 8155/12; and it is further,
ADJUDGED that the petition and proceeding are dismissed insofar as asserted against the respondent Yi Jing Tan, without costs or disbursements.
In February 2015, the petitioner commenced this CPLR article 78 proceeding in the nature of mandamus to compel judicial determination of four pending motions, fully submitted on June 17, 2013, July 24, 2013, November 26, 2013, and June 19, 2014, respectively, in an underlying action assigned to the respondent Duane A. Hart, a Justice of the Supreme Court.
“Mandamus will lie to compel the determination of a motion” (Matter of Weinstein v. Haft, 60 N.Y.2d 625, 627, 467 N.Y.S.2d 350, 454 N.E.2d 933 ; see Matter of Jacobs v. Parga, 98 A.D.3d 741, 742, 950 N.Y.S.2d 204 ; Matter of Law Offs. of Russell I. Marnell, P.C. v. Blydenburgh, 26 A.D.3d 495, 809 N.Y.S.2d 470 ; Matter of DeCintio v. Cohalan, 18 A.D.3d 872, 795 N.Y.S.2d 459 ). Under the particular circumstances of this case, the petitioner demonstrated a clear legal right to the relief sought (see Matter of Law Offs. of Russell I. Marnell, P.C. v. Blydenburgh, 26 A.D.3d at 496, 809 N.Y.S.2d 470 ; Matter of DeCintio v. Cohalan, 18 A.D.3d at 872, 795 N.Y.S.2d 459 ; see also CPLR 2219[a] ). Accordingly, the petition must be granted insofar as asserted against the respondent Hart, and that respondent is directed to issue written orders within 30 days of this decision and judgment determining the four fully submitted motions pending in the underlying action entitled Liang v. Yi Jing Tan, pending in the Supreme Court, Queens County, under Index No. 8155/12.
The petition and proceeding must be dismissed insofar as asserted against the respondent Yi Jing Tan, as she is neither a Judge of a County Court nor a Justice of the Supreme Court and, hence, this Court lacks subject matter jurisdiction over the proceeding insofar as asserted against her (see CPLR 7804 [b], 506[b][1]; Matter of Nolan v. Lungen, 61 N.Y.2d 788, 790, 473 N.Y.S.2d 388, 461 N.E.2d 874 ; Matter of Lawtone–Bowles v. Klein, 131 A.D.3d 697, 698, 15 N.Y.S.3d 445 ; Matter of Morales v. Woods, 85 A.D.3d 924, 925 N.Y.S.2d 335 ).