Opinion
Argued June 11, 1974
Decided June 27, 1974
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, MORRIE SLIFKIN, J.
Harry Lott, County Attorney ( Richard J. O'Keeffe, Anthony J. Caputo and Joseph J. Buderwitz, Jr. of counsel), for appellants.
Attilio J. Balletta for respondent.
Order affirmed, without costs, in the following memorandum: Mandamus, rarely, if ever, lies where relief is or has been available by way of motion or appeal in an action (CPLR 7801, subd. 1; 23 Carmody-Wait, 2d, New York Practice, § 145:99). Nevertheless, in the discretion of the Supreme Court, the remedy may be invoked if in fact no relief is currently available, official records are involved, and the interests of justice are substantially served (cf. Matter of Ihrig v. Williams, 181 App. Div. 865, 868, affd. 223 N.Y. 670; Ann., Mandamus — Inspection of Records, 169 A.L.R. 653). The issue of excludable material was never properly presented in the record before the court. If so advised, respondents-appellants may seek appropriate relief by way of a motion to amend the judgment in this proceeding.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and STEVENS. Taking no part: Judge RABIN.