Durio v. Egitto

• Decision Date: 18 December 1995
• Citation: 636 N.Y.S.2d 642,222 A.D.2d 587
• Parties: In the Matter of Lenny DURIO, Petitioner, v. Francis X. EGITTO, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 642

636 N.Y.S.2d 642

222 A.D.2d 587

In the Matter of Lenny DURIO, Petitioner, v. Francis X. EGITTO, etc., Respondent.

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

Dec. 18, 1995.

Lenny Durio, Comstock, petitioner pro se.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Joyce Slevin, of counsel), for respondent.

Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to vacate and set aside an order of the Supreme Court, Kings County, dated February 6, 1995, on the ground that the underlying proceedings are null and void, and to hold a hearing in relation to the petitioner's claim of ineffective assistance of counsel pursuant to CPL 440.10.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto, it is

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought (see, Matter of Legal Aid Society of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542). The petitioner here has failed to demonstrate a clear legal right to the relief sought.

MANGANO, P.J., and BRACKEN, SULLIVAN and MILLER, JJ., concur.