Ack v. Firetog

11 A.D.3d 681, 782 N.Y.S.2d 920, 2004 N.Y. App. Div. LEXIS 12489

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2004
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Neil Firetog, a Justice of the Supreme Court, Kings County, from proceeding with the trial in a criminal action entitled People v Ack, pending in that court under Indictment No. 8756/02, and application by the petitioner for poor person relief.

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Altman, J.P., Krausman, Cozier and Lifson, JJ., concur.