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Matter of Carter v. N.Y. State Div. of Parole

Appellate Division of the Supreme Court of New York, Third Department
Mar 7, 1991
171 A.D.2d 905 (N.Y. App. Div. 1991)

Opinion

March 7, 1991

Appeal from the Supreme Court, Albany County (Cheeseman, J.).


Petitioner commenced this CPLR article 78 proceeding seeking an order directing respondent to expunge certain portions of petitioner's parole records which refer to criminal charges and parole violations that had been dismissed. According to petitioner, he was prejudiced because a report containing the dismissed charges was impermissibly used against him in an action brought by him in Federal District Court. Supreme Court granted the petition and this appeal by respondent followed.

We reverse. "As conditions precedent to a proceeding in the nature of mandamus to compel action, such as we have here, there must be a demand upon a public body or officer to perform a duty and a refusal by the body or officer to perform" (Matter of Remedy for Infinite Unconcern for Mentally Physically Handicapped [TRIUMPH] v O'Shea, 77 A.D.2d 363, 365, appeal dismissed 54 N.Y.2d 681 [citation omitted]). Since petitioner concedes that he made no such demand, he is precluded from instituting this CPLR article 78 proceeding in the nature of mandamus (see, supra). In addition, petitioner has shown no clear right to the relief sought in his petition; he points to no statute or regulation which requires removal of the objectionable material from his parole file.

Judgment reversed, on the law, without costs, and petition dismissed. Mahoney, P.J., Casey, Weiss, Crew III, and Harvey, JJ., concur.


Summaries of

Matter of Carter v. N.Y. State Div. of Parole

Appellate Division of the Supreme Court of New York, Third Department
Mar 7, 1991
171 A.D.2d 905 (N.Y. App. Div. 1991)
Case details for

Matter of Carter v. N.Y. State Div. of Parole

Case Details

Full title:In the Matter of LOUIS CARTER, Respondent, v. NEW YORK STATE DIVISION OF…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 7, 1991

Citations

171 A.D.2d 905 (N.Y. App. Div. 1991)
566 N.Y.S.2d 778