

Matter of Canestro v Pineda-Kirwan (2015 NY Slip Op 07654)





Matter of Canestro v Pineda-Kirwan


2015 NY Slip Op 07654


Decided on October 21, 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 October 21, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.


2015-07711

[*1]In the Matter of Anthony Canestro, petitioner,
vDiccia Pineda-Kirwan, etc., et al., respondents. Jackson & Schwartz, LLP, Jericho, N.Y. (Henry J. Cernitz of counsel), for petitioner.


John W. McConnell, New York, N.Y. (Lee A. Adlerstein of counsel), for respondent Diccia Pineda-Kirwan.

DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent Diccia Pineda-Kirwan, a Justice of the Supreme Court, Queens County, to determine a pending motion and cross motion in an underlying action entitled Pietrafesa v Canestro, pending in the Supreme Court, Queens County, under Index No. 6281/12.
ADJUDGED that the petition and proceeding are dismissed insofar as asserted against the respondent Gene Pietrafesa, as executor of the estate of Marie Pietrafesa, without costs or disbursements; and it is further
ADJUDGED that the petition is denied and the proceeding is dismissed on the merits insofar as asserted against the respondent Diccia Pineda-Kirwan, without costs or disbursements.
The petition and proceeding must be dismissed insofar as asserted against Pietrafesa, as he is neither a Judge of a County Court nor a Justice of the Supreme Court and, hence, this Court lacks subject matter jurisdiction over the proceeding insofar as asserted against him (see CPLR 7804[b], 506[b][1]; Matter of Nolan v Lungen, 61 NY2d 788, 790; Matter of Lawtone-Bowles v Klein, 131 AD3d 697, 698).
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). With respect to the remaining respondent, the petitioner has failed to demonstrate a clear legal right to the relief sought.
DILLON, J.P., LEVENTHAL, COHEN and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


