Durio v. Egitto , 636 N.Y.S.2d 642 ( 1995 )

—Proceeding pursuant to CPLR article 78 in the nature of mandamus, inter alia, to compel the respondent to vacate and set aside an order of the Supreme Court, Kings County, dated February 6, 1995, on the ground that the underlying proceedings are null and void, and to hold a hearing in relation to the petitioner’s claim of ineffective assistance of counsel pursuant to CPL 440.10.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto, it is

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Bracken, Sullivan and Miller, JJ., concur.