Matter of Cruz v. D'Emic

Matter of Cruz v D'Emic (2021 NY Slip Op 03175) Matter of Cruz v D'Emic 2021 NY Slip Op 03175 Decided on May 19, 2021 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 19, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. LEONARD B. AUSTIN BETSY BARROS ANGELA G. IANNACCI, JJ. 2021-01995 DECISION, ORDER & JUDGMENT [*1]In the Matter of Nelson Cruz, petitioner, v Matthew D'Emic, etc., et al., respondents. Justin C. Bonus, Forest Hills, NY, for petitioner. Eric Gonzalez, District Attorney, Brooklyn, NY (Camille O'Hara Gillespie and Leonard Joblove of counsel), nonparty pro se. Proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compel the respondents Matthew D'Emic, a Justice of the Supreme Court, Kings County, and Raymond L. Rodriguez, an Acting Justice of the Supreme Court, Kings County, to issue a written order determining the petitioner's motion for leave to reargue his prior motion pursuant to CPL 440.10, filed by the petitioner in an action entitled People v Cruz, commenced in that court under Indictment No. 3669/1998, and to conduct a hearing on a January 3, 2020 motion to reargue a "bench decision" which occurred on August 29, 2019, or to compel the respondents to issue a written order determining that motion, in that same action. Application by the petitioner, inter alia, to strike the affirmation in opposition filed by the nonparty pro se. ORDERED that the application is denied; and it is further, ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that the matter is remitted to the Supreme Court, Kings County, for a written order determining the petitioner's motion for leave to reargue his prior motion pursuant to CPL 440.10, filed by the petitioner in the action entitled People v Cruz, commenced in that court under Indictment No. 3669/1998, and an order determining the petitioner's motion to reargue a "bench decision" which occurred on August 29, 2019; the orders shall be issued within 45 days after service upon the respondents of a copy of this decision, order and judgment; and the petition is otherwise denied. Under the circumstances of this case, the petitioner demonstrated a clear legal right to a written order determining his motion for leave to reargue his prior motion pursuant to CPL 440.10, in the action entitled People v Cruz, commenced in that court under Indictment No. 3669/1998, and mandamus properly lies to compel the respondents to issue that written order, as well as an order determining the petitioner's motion to reargue the "bench decision" which occurred on August 29, 2019 (see Matter of Weinstein v Haft, 60 NY2d 625, 627; Klostermann v Cuomo, 61 NY2d 525, 540; Matter of Law Offs. of Russell I. Marnell, P.C. v Blydenburgh, 26 AD3d 495). The petitioner's remaining contentions are without merit. DILLON, J.P., AUSTIN, BARROS and IANNACCI, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court