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Willis v. Tomei

Supreme Court, Appellate Division, Second Department, New York.
Apr 23, 2014
116 A.D.3d 963 (N.Y. App. Div. 2014)

Opinion

2014-04-23

In the Matter of Terrell WILLIS, petitioner, v. Albert TOMEI, etc., et al., respondents.

Walter T. Ramsey, Brooklyn, N.Y., for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Susan Anspach of counsel), for respondent Albert Tomei.


Walter T. Ramsey, Brooklyn, N.Y., for petitioner. Eric T. Schneiderman, Attorney General, New York, N.Y. (Susan Anspach of counsel), for respondent Albert Tomei.

Proceeding, in effect, pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Albert Tomei, a Justice of the Supreme Court, Kings County, to vacate an order of that court entered October 16, 2013, in a criminal action entitled People v. Kelly, commenced in that court under Indictment No. 545/11, and thereupon to reinstate an order of that court dated May 22, 2013, adjudging the petitioner to be a material witness in accordance with CPL 620.50(2), and in the nature of prohibition to prohibit the respondent Albert Tomei from enforcing the order entered October 16, 2013.

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). Moreover, “[b]ecause 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 has failed to establish a clear legal right to the relief sought. DICKERSON, J.P., HALL, ROMAN and COHEN, JJ., concur.


Summaries of

Willis v. Tomei

Supreme Court, Appellate Division, Second Department, New York.
Apr 23, 2014
116 A.D.3d 963 (N.Y. App. Div. 2014)
Case details for

Willis v. Tomei

Case Details

Full title:In the Matter of Terrell WILLIS, petitioner, v. Albert TOMEI, etc., et…

Court:Supreme Court, Appellate Division, Second Department, New York.

Date published: Apr 23, 2014

Citations

116 A.D.3d 963 (N.Y. App. Div. 2014)
116 A.D.3d 963
2014 N.Y. Slip Op. 2786