Supreme Court granted the [1] the City of New York's cross-motion to dismiss Plaintiff's petition seeking to compel the City's Department of Investigation [DOI] to investigate alleged criminal activity targeting Plaintiff while she was employed by the New York City Public Advocate's Office, [2] granted the City's motion dismissing Plaintiff's CPLR Article 78 action and [3] the rejected Plaintiff's efforts seeking the designated Justice's voluntary "recusal" in the Article 78 matter. Plaintiff appealed.
The Appellate Division unanimously affirmed Plaintiff lack of success in obtaining a writ of mandamus in Supreme Court, explaining that a writ of mandamus may be sought "to enforce the performance of a ministerial duty", but a writ of mandamus cannot be used "to compel an act in respect to which a public officer may exercise judgment or discretion".
Observing that DOI's decision not to investigate the matter was not arbitrary and capricious, the Appellate Division's decision points out that "DOI rationally directed the Public Advocate's Office to have [Plaintiff] report the alleged criminal conduct to the police".
Addressing Plaintiff's efforts seeking the "self-recusal" of the assigned Justice in the CPLR Article 78 action, the Appellate Division opined that Supreme Court providently rejected Plaintiff's efforts concerning the recusal of the assigned Justice as the assigned Justice was not a party to and had not been an attorney or counsel "in this proceeding".
Nor, said the Appellate Division, did Plaintiff contend that the assigned Justice "had 'an interest' in the proceeding or was related to the parties" and in the absence "of any statutorily mandated disqualification and any legitimate suggestions of bias or impartiality" which Plaintiff can demonstrate, the assigned Justice's decision "not to recuse" was appropriate as a matter of personal conscience.
Click HERE to access the Appellate Division's decision posted on the Internet.