

Matter of Levy v Rooney (2015 NY Slip Op 04647)





Matter of Levy v Rooney


2015 NY Slip Op 04647


Decided on June 3, 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 June 3, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

CHERYL E. CHAMBERS, J.P.
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY, JJ.


2015-02863	DECISION, ORDER & JUDGMENT

[*1]In the Matter of Adam B. Levy, etc., petitioner,
vJames Rooney, etc., et al., respondents.


Adam B. Levy, Carmel, N.Y., petitioner pro se.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael J. Siudzinski and Roderick L. Arz of counsel), for respondent James Rooney.
Aronwald & Pykett, White Plains, N.Y. (William I. Aronwald of counsel), for respondent Lani Zaimi.

DECISION & ORDER
Proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent James Rooney, a Judge of the County Court, Putnam County, to conduct a Sirois  hearing (see People v Sirois , 92 AD2d 618), in an action entitled People v Zaimi , pending in the County Court, Putnam County, under Indictment No. 47/13, or, in the alternative, for a judgment declaring that the respondent James Rooney is required to conduct the Sirois  hearing.
ORDERED that the branch of the petition which is for a judgment declaring that the respondent James Rooney is required to conduct a Sirois  hearing is dismissed; and it is further,
ADJUDGED that the petition is otherwise 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; Matter of Holtzman v Goldman , 71 NY2d 564, 569). The petitioner failed to establish a clear legal right to the relief sought.
CHAMBERS, J.P., COHEN, HINDS-RADIX and DUFFY, JJ., concur.

2015-02863	ON MOTION
In the Matter of Adam B. Levy, etc., petitioner,
v James Rooney, etc., et al., respondents.

Motion by the petitioner to amend the petition in a proceeding, inter alia, pursuant to CPLR article 78.
Upon the papers filed in support of the motion and the papers filed in relation thereto, [*2]it is
ORDERED that the motion is granted, and the petition is amended to reflect that the petitioner intends to prosecute the action entitled People v Zaimi , pending in the County Court, Putnam County, under Indictment No. 47/13, in the absence of testimony from a certain witness.
CHAMBERS, J.P., COHEN, HINDS-RADIX and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


