Summary
This Appellate Division, Second Department decision addresses a CPLR Article 78 proceeding brought by petitioner Giuseppe Lubrano against Supreme Court Justice Sharon Bourne Clarke and others. The petitioner sought a writ of mandamus to compel the respondent to void a real property sale, disclose alleged communications with another party, and hold a hearing. The court denied the petition on the merits, finding that the petitioner failed to demonstrate a clear legal right to the extraordinary remedy of mandamus, and also denied the respondent's motion to dismiss as academic.
Topics
Practice areas
Questions Presented
- Whether mandamus lies to compel the performance of a non‑ministerial act where no clear legal right is shown
- Whether the petition should be dismissed for failure to state a cause of action
Holdings
- Mandamus lies only to compel the performance of a ministerial act where a clear legal right to the relief exists; the petitioner failed to demonstrate such a right and the petition was dismissed.
- The application for waiver of costs is granted only to the extent that the filing fee imposed by CPLR 8022(b) is waived; the remainder of the application is denied as academic.
Key quotations
“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).”
Factual background
Giuseppe Lubrano, pro se, sought a mandamus order to compel Justice Sharon Bourne Clarke to void the sale of certain real property, to provide information about alleged communications with respondent Raquel Vasserman, and to hold a hearing. Respondents filed a motion to dismiss for failure to state a cause of action.
Procedural history
Petitioner Lubrano filed a petition for mandamus in the Appellate Division, Second Department seeking to compel Justice Clarke to void a real‑property sale and to obtain information. Respondents moved to dismiss for failure to state a cause of action. The Division denied the motion and dismissed the petition.