Grisi v. Shainswit

• Decision Date: 28 October 1986
• Citation: 119 A.D.2d 418,507 N.Y.S.2d 155
• Parties: In the Matter of the Application of William GRISI and Smith Limousine Company, Inc., Petitioners, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules in the nature of Mandamus v. The Hon. Beatrice SHAINSWIT, Justice of the Supreme Court of the State of New York, New York County, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 155

507 N.Y.S.2d 155

119 A.D.2d 418

In the Matter of the Application of William GRISI and Smith Limousine Company, Inc., Petitioners for a judgment pursuant to Article 78 of the Civil Practice Law and Rules in the nature of Mandamus v. The Hon. Beatrice SHAINSWIT, Justice of the Supreme Court of the State of New York, New York County, Respondent.

Supreme Court, Appellate Division First Department.

Oct. 28, 1986.

Richard M. Sands, of counsel (Jones Hirsch Connors & Bull, New York City), for petitioners.

Abigail I. Petersen, of counsel (Robert Abrams, Atty. Gen., New York City), for respondent.

Annette Scarano, of counsel (Subin Associates, P.C., New York City), for plaintiffs Petioni in the underlying action.

Before SANDLER, J.P., and SULLIVAN, CARRO and ROSENBERGER, JJ.

PER CURIAM:

This proceeding is an outgrowth of a personal injury action which has its origins in an automobile accident. After a note of issue and statement of readiness had been filed, the plaintiff claimed, for the first time, in a second further supplemental bill of particulars, dated June 11, 1986, future lost earnings (approximately $1,000,000), based on his "inability to engage in his livelihood." The plaintiff alleged that he is being "medically discharged from the United States Coast Guard" as a result of the accident. Since the "Information Sheet" made available to counsel by the justice presiding in IAS Part X, where the personal injury action is pending, provides that motions may not be made without a pre-motion conference, the defendants thereafter moved orally at a pre-trial conference on June 16, 1986, pursuant to CPLR 3043(b), for a further physical examination and deposition of the plaintiff with respect to this alleged continuing item of special damage and disability. The application was denied. On July 1, 1986, the defendants submitted a proposed order with notice of settlement reflecting the denial. To date, no action has been taken on the proposed order.

On July 3, 1986, the defendants served a request for a premotion conference, seeking permission to move to strike the note of issue and statement of readiness on the ground that the action was not ready for trial, alleging as the basis their entitlement to another physical examination and deposition of the plaintiff with respect to his newly asserted claim and to receipt of duly executed authorizations for the release of his employment and tax records. In response, the court scheduled a conference for July 14, 1986, at which it issued a preliminary conference order directing that the plaintiff provide the defendants with the requested authorizations. The application for a further deposition and physical examination was, however, denied. Notwithstanding the defendants' request, the justice presiding refused to enter a written order denying the application for a further deposition and physical examination. The court also refused the defendants' request that a court reporter record its determination. Efforts to have the Administrative Judge prevail upon the court to issue a written order or to permit a transcription of its denial of the defendants' application proved fruitless.

Since they wish to appeal from the denial of their application for a physical examination and further deposition, and no appeal lies from a ruling, as distinct from an order (CPLR 5512[a]; Lee v. Chemway Corp., 20 A.D.2d 266, 247 N.Y.S.2d 287), which must be in writing (CPLR 2219; LeGlaire v. New York Life Ins. Co., 5 A.D.2d 171, 170 N.Y.S.2d 763), the defendants, petitioners herein, thereupon commenced this proceeding seeking a judgment in the nature of a writ of mandamus directing the court to issue a written order reflecting its denial of their application.

Mandamus is the appropriate, albeit extraordinary, remedy to compel a body or officer, including a judicial officer, to perform "a purely ministerial act where there is a clear legal right to the relief sought." (Matter of Legal Aid Soc. of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542; see Matter of State of New York v. King, 36 N.Y.2d 59, 62-63, 364 N.Y.S.2d 879, 324 N.E.2d 351; also, Matter of Colonial Beacon Oil Co., Inc. v. Finn, 245 App.Div. 459, 283 N.Y.S. 384, affd. 270 N.Y. 591, 1 N.E.2d 345.) The ministerial act must be "nondiscretionary and nonjudgmental" and "premised upon specific statutory authority mandating performance in a specific manner." (Matter of Peirez v. Caso, 72 A.D.2d 797, 421 N.Y.S.2d 627; see Matter of Hamptons Hosp. & Med. Center v. Moore, 52 N.Y.2d 88, 97, 436 N.Y.S.2d 239, 417 N.E.2d 533.) A court cannot be commanded to exercise its discretionary functions in a prescribed manner. (Matter of Kahn v. Backer, 21 A.D.2d 171, 173, 249 N.Y.S.2d 572.) The right to performance "must be so clear as not to admit of reasonable doubt or controversy." (Matter of Burr v. Voorhis, 229 N.Y. 382, 387, 128 N.E. 220; Matter of Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v. Bartlett, 40 N.Y.2d 571, 574, 380 N.Y.S.2d 882, 357 N.E.2d 353.)

In this case, petitioners are unable to point to any authority, statutory or otherwise, which mandates that a court issue a separately signed, written order embodying its ruling on an oral application. Ordinarily, in such circumstances, we would dismiss the petition for want of a showing of a clear legal right to the relief sought. The reality, though, is that the application was orally presented, not by design, but only because petitioners were denied the opportunity to move formally on papers. In this connection, we note a growing tendency in the Supreme Court civil trial parts to condition the making of a written motion on prior judicial approval. In certain instances a refusal to allow the motion is accompanied by an express, but oral, denial of the motion. In others, the request is simply refused, effectively resulting in a denial of the motion. In either event, there is no record available for appellate review. In some instances, as here, there is not even a written order. Our difficulty with this practice is that it tends to frustrate a litigant's statutorily provided right of appeal from an intermediate order (CPLR 5701[a][2] ).

It hardly bears repeating that courts have the inherent power, and indeed...