Matter of Decintio v. Cohalan

• Decision Date: 31 May 2005
• Docket Number: 2004-07231.
• Parties: In the Matter of ANTHONY J. DeCINTIO, Petitioner, v. PETER FOX COHALAN, as Justice of the Supreme Court of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

18 A.D.3d 872

795 N.Y.S.2d 459

2005 NY Slip Op 04420

In the Matter of ANTHONY J. DeCINTIO, Petitioner, v. PETER FOX COHALAN, as Justice of the Supreme Court of the State of New York, et al., Respondents.

2004-07231.

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

May 31, 2005.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondent Peter Fox Cohalan, a Justice of the Supreme Court, Suffolk County, to determine the petitioner's motion to vacate a judgment of the same court entered June 26, 2003, upon his default in appearing at a conference, in an action entitled Catania v DeCintio, under Suffolk County index No. 13972/98.

Motion by the respondent Andrew J. Schatkin, inter alia, to dismiss the proceeding insofar as asserted against him as time-barred.

Ordered that the motion is denied; and it is further,

Adjudged that the petition is granted, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a determination of the petitioner's motion.

"Mandamus will lie to compel the determination of a motion" (Matter of Weinstein v Haft, 60 NY2d 625, 627 [1983]; see Matter of Greenfield, 76 NY2d 293 [1990]; Matter of Silk & Bunks v Greenfield, 102 AD2d 734 [1984]; see also CPLR 2219 [a]). A judicial officer may be compelled to perform a ministerial duty prescribed by law, but not an act in respect to which he may exercise judgment or discretion (see Klostermann v Cuomo, 61 NY2d 525, 540 [1984]; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12 [1981]). "The writ of mandamus . . . may [therefore] . . . be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide in a particular manner" (Klostermann, supra at 540, quoting People ex rel. Francis v Common Council of City of Troy, 78 NY 33, 39 [1879]).

Moreover, contrary to the respondents' contention, "where a duty imposed prior to a limitations period is a continuing one, the statute of limitations is not a defense to actions based on breaches of that duty occurring within the limitations period" (Matter of Condo Units v New York State Div. of Hous. & Community Renewal, 4 AD3d 424, 425 [2004]; see Matter of Grossman v Rankin, 43 NY2d 493, 506 [1977]; Matter of Dearman v City of White Plains, 237 AD2d 603 [1997]). "[W]here, as here, the practice complained of is a continuing one and...