Opinion
2013-05-8
In the Matter of Fausat OGUNBAYO, appellant, v. ADMINISTRATION FOR CHILDREN'S SERVICES, respondent.
Fausat Ogunbayo, Staten Island, N.Y., appellant pro se. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Fay Ng of counsel), for respondent.
Fausat Ogunbayo, Staten Island, N.Y., appellant pro se. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Fay Ng of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the New York City Administration for Children's Services to return the petitioner's children to the custody of the petitioner and to produce, inter alia, the records of the children since they were removed from the petitioner's home in June 2008, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Lewis, J.), dated December 5, 2011, which denied her motion for leave to enter a default judgment against the New York City Administration for Children's Services upon their failure to answer the petition or appear in the proceeding, granted that branch of the cross motion of the New York City Administration for Children's Services which was pursuant to CPLR 3211(a)(7) and CPLR 7804(f) to dismiss the petition, and dismissed the proceeding.
ORDERED that the order and judgment is affirmed, with costs.
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. of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542). The petitioner has failed to demonstrate a clear legal right to the relief sought.
The petitioner's motion for leave to enter a default judgment was properly denied ( seeCPLR 7804[c], [f]; Matter of Katz v. Board of Appeals of Vil. of Kings Point, 21 A.D.2d 693, 250 N.Y.S.2d 469).
The petitioner's remaining contentions either raise issues not determined by the order and judgment appealed from ( see Matter of Tishauna Patricia N. [ Tee Tee Ann W.], 68 A.D.3d 1119, 1119–1120, 890 N.Y.S.2d 346;see generally Thompson v. Leben Home for Adults, 39 A.D.3d 624, 626, 833 N.Y.S.2d 234;Grossman v. Amalgamated Warbasse Houses, Inc., 21 A.D.3d 448, 799 N.Y.S.2d 748), improperly refer to matter dehors the record ( see Matter of Ice S., 30 A.D.3d 428, 816 N.Y.S.2d 557), or are improperly raised for the first time in the reply brief she submitted to this Court ( see Matter of Corrigan v. Orosco, 84 A.D.3d 955, 921 N.Y.S.2d 893).