| Matter of Horowitz v New York City Police Dept. |
| 2011 NY Slip Op 01841 [82 AD3d 887] |
| March 8, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jeffrey Horowitz, Appellant, v New YorkCity Police Department, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow ofcounsel; Alyse Fiori on the brief), for respondent.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel therespondent to conduct a further investigation into an alleged criminal offense, the petitionerappeals from an order and judgment (one paper) of the Supreme Court, Kings County(Ruchelsman, J.), dated April 28, 2010, which granted the respondent's motion to dismiss theproceeding on the merits and dismissed the proceeding.
Ordered that the order and judgment is affirmed, without costs or disbursements.
The extraordinary remedy of a writ of mandamus is available in limited circumstances onlyto compel the performance of a purely ministerial act which does not involve the exercise ofofficial discretion or judgment, and only when a clear legal right to the relief has beendemonstrated (see Klostermann v Cuomo, 61 NY2d 525, 537 [1984]; Matter ofSalisbury v Lapidez, 277 AD2d 319 [2000]; Matter of Kusky v Town of Islip, 266AD2d 460, 461 [1999]; Matter of Bullion v Safir, 249 AD2d 386 [1998]; Matter ofPeirez v Caso, 72 AD2d 797 [1979]). Here, the petitioner sought to compel the respondent toperform the discretionary act of continuing the investigation of an alleged larceny of a relativelysmall amount of money that occurred in 2006, in the hope that the investigation may allow thepetitioner to expose alleged widespread nursing home abuses. Since the conduct which thepetitioner sought to compel clearly involves the application of police discretion and judgment,the remedy of mandamus was not available (see e.g. Matter of Walsh v LaGuardia, 269NY 437 [1936]; Matter of OkslenAcupuncture P.C. v Dinallo, 77 AD3d 451, 452 [2010]; Matter of Grzyb vConstantine, 182 AD2d 942 [1992]; Matter of Young v Town of Huntington, 121AD2d 641, 642 [1986]; Matter of Perazzo v Lindsay, 30 AD2d 179, 180, [1968], affd23 NY2d 764 [1968]). Accordingly, the Supreme Court properly granted the respondent'smotion to dismiss the proceeding on the merits, and dismissed the proceeding. Mastro, J.P.,Skelos, Eng and Sgroi, JJ., concur.