

Matter of Pelczar v Kelly (2015 NY Slip Op 06671)





Matter of Pelczar v Kelly


2015 NY Slip Op 06671


Decided on August 26, 2015


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 26, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX, JJ.


2015-04132

[*1]In the Matter of James Frederic Pelczar, petitioner,
vPeter J. Kelly, etc., respondent.


James Frederic Pelczar, Tokyo, Japan, petitioner pro se.

DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, Peter J. Kelly, the Surrogate of Queens County, to dismiss a proceeding entitled Estate of Pelczar,  pending in the Surrogate's Court, Queens County, under File No. 2014-2284.
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). The petitioner has failed to demonstrate a clear legal right to the relief sought.
LEVENTHAL, J.P., DICKERSON, ROMAN and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


