Opinion
Argued October 13, 2000.
November 13, 2000.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent to accept custody of the petitioner's grandchildren pursuant to Social Services Law § 384-a, appoint the petitioner as their foster parent, and pay the petitioner a foster care subsidy, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Franco, J.), entered April 12, 1999, which denied the petition and dismissed the proceeding.
Jane C. Reinhardt, Huntington, N.Y., for appellant.
Alfred F. Samenga, County Attorney, Mineola, N.Y. (Tara Talmadge of counsel), for respondent.
Before: WILLIAM C. THOMPSON, J.P., DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, 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 Kusky v. Town of Islip, 266 A.D.2d 460; Matter of Bullion v. Safir, 249 A.D.2d 386). Mandamus will not be awarded to compel an act with respect to which an administrative agency may exercise judgment or discretion (see, Klostermann v. Cuomo, 61 N.Y.2d 525; Matter of Hamptons Hosp. Med. Center v. Moore, 52 N.Y.2d 88; Matter of Kusky v. Town of Islip, supra). The petitioner failed to demonstrate a clear legal right to compel the respondent to accept custody of the children because of his temporary inability to support them and, at the same time, appoint him their foster parent (see, Social Services Law § 384-a; People ex rel. Anne N. v. Nassau County Dept. of Social Servs., 152 A.D.2d 30, 34; Matter of Lee, 70 A.D.2d 775; Matter of David R., 101 Misc.2d 41).
In light of our determination, we do not pass on the relative merits of the petitioner's claim concerning the Interstate Compact on the Placement of Children (see, Social Services Law § 374-a, art V).