| Matter of Denker-Youngs v Reilly |
| 2016 NY Slip Op 05918 |
| Decided on August 31, 2016 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on August 31, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JEFFREY A. COHEN
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.
2016-04232 DECISION, ORDER & JUDGMENT
v
David T. Reilly, etc., et al., respondents. Brian H. Denker-Youngs, Brooklyn, NY, petitioner pro se.
Eric T. Schneiderman, Attorney General, New York, NY (Angel M. Guardiola II of counsel), for respondent David T. Reilly.
Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent David T. Reilly, a Justice of the Supreme Court, Suffolk County, to recuse himself from presiding over an action entitled Denker-Youngs v Denker-Youngs, pending in that court under Index No. 16968/14, and in the nature of prohibition to preclude enforcement of any order issued by the respondent David T. Reilly.
Motion by the respondent David T. Reilly to dismiss the proceeding insofar as asserted against him on the ground, among others, that mandamus and prohibition do not lie.
ORDERED that the motion is granted; 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 NY2d 12, 16). 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 NY2d 564, 569; see Matter of Rush v Mordue , 68 NY2d 348, 352).
The petitioner has failed to establish a clear legal right to the relief sought.
DILLON, J.P., COHEN, BARROS and CONNOLLY, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court