Opinion
145 OP 18–01519
02-08-2019
In the MATTER OF MONROE COUNTY FEDERATION OF SOCIAL WORKERS, IUE-CWA LOCAL 381, Petitioner, v. Thomas A. STANDER, J.S.C., and County of Monroe, Respondents.
TREVETT CRISTO P.C., ROCHESTER (MICHAEL T. HARREN OF COUNSEL), FOR PETITIONER. HARRIS BEACH PLLC, PITTSFORD (JOHN A. MANCUSO OF COUNSEL), FOR RESPONDENT COUNTY OF MONROE.
TREVETT CRISTO P.C., ROCHESTER (MICHAEL T. HARREN OF COUNSEL), FOR PETITIONER.
HARRIS BEACH PLLC, PITTSFORD (JOHN A. MANCUSO OF COUNSEL), FOR RESPONDENT COUNTY OF MONROE.
PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said petition is unanimously dismissed with costs.
Memorandum: Petitioner commenced this original CPLR article 78 proceeding to compel Hon. Thomas A. Stander (respondent), a now retired Supreme Court Justice, to render a judgment in an underlying special proceeding (see CPLR 411 ). We conclude that the petition must be dismissed. First, the proceeding is untimely. "[W]here, as here, the proceeding is in the nature of mandamus to compel, it ‘must be commenced within four months after refusal by respondent, upon demand of petitioner, to perform its duty’ " ( Matter of Granto v. City of Niagara Falls , 148 A.D.3d 1694, 1695, 51 N.Y.S.3d 714 [4th Dept. 2017] ; see CPLR 217[1] ). Here, petitioner made its demand for a judgment in July 2017, and respondent refused that demand by letter to the parties dated December 21, 2017. This proceeding was commenced in August 2018, well beyond the four-month limitations period. Second, the petition is jurisdictionally defective inasmuch as petitioner never obtained personal jurisdiction over respondent (see CPLR 7804[c] ; Matter of Hock v. Brennan , 107 A.D.3d 991, 992, 966 N.Y.S.2d 881 [2d Dept. 2013] ; Matter of Taylor v. Poole , 285 A.D.2d 769, 770, 728 N.Y.S.2d 563 [3d Dept. 2001] ; Matter of Lothrop v. Edelstein , 112 A.D.2d 433, 434, 492 N.Y.S.2d 94 [2d Dept. 1985] ). Finally, the petition is wholly without merit inasmuch as petitioner is not entitled to mandamus relief. A writ of mandamus "is an extraordinary remedy that lies only to compel the performance of acts which are mandatory, not discretionary, and only when there is a clear legal right to the relief sought" ( Matter of Dinsio v. Supreme Ct., Appellate Div., Third Jud. Dept. , 125 A.D.3d 1313, 1314 [4th Dept. 2015], lv. denied 25 N.Y.3d 908, 2015 WL 3894772 [2015], rearg. denied 26 N.Y.3d 1134, 27 N.Y.S.3d 497, 47 N.E.3d 777 [2016] ; see Matter of County of Chemung v. Shah , 28 N.Y.3d 244, 266, 44 N.Y.S.3d 326, 66 N.E.3d 1044 [2016] ). CPLR 411 provides that a court "shall direct that a judgment be entered determining the rights of the parties to the special proceeding." A CPLR article 78 proceeding terminates in a judgment even if the document appealed from is denominated an order (see CRP/Extell Parcel I, L.P. v. Cuomo , 27 N.Y.3d 1034, 1037, 33 N.Y.S.3d 148, 52 N.E.3d 1174 [2016] ; Matter of McMillian v. Lempke , 149 A.D.3d 1492, 1493, 52 N.Y.S.3d 771 [4th Dept. 2017], appeal dismissed 30 N.Y.3d 930, 62 N.Y.S.3d 292, 84 N.E.3d 964 [2017] ). Here, respondent issued a "decision and order" in the underlying proceeding; that paper is deemed a judgment, from which petitioner failed to take a timely appeal (see Matter of Aarismaa v. Bender , 108 A.D.3d 1203, 1204, 969 N.Y.S.2d 697 [4th Dept. 2013] ).