Barnes v. Grosso

Appellate Division of the Supreme Court of New York

Barnes v. Grosso

303 A.D.2d 752, 756 N.Y.S.2d 868, 2003 N.Y. App. Div. LEXIS 3345

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 31, 2003

StatusPublished

This text of 303 A.D.2d 752 (Barnes v. Grosso) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Barnes v. Grosso, 303 A.D.2d 752, 756 N.Y.S.2d 868, 2003 N.Y. App. Div. LEXIS 3345 (N.Y. Ct. App. 2003).

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Opinion

—Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to compel the respondent Joseph Grosso, a Justice of the Supreme Court, Queens County, to dismiss a criminal action entitled People v Barnes, pending in that court, under Queens County Indictment No. 2234/01, and an application 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 as academic; 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]). Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]).

The petitioner failed to demonstrate a clear legal right to the relief sought. Ritter, J.P., Feuerstein, H. Miller and Townes, JJ., concur.

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—Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to compel the respondent Joseph Grosso, a Justice of the Supreme Court, Queens County, to dismiss a criminal action entitled People v Barnes, pending in that court, under Queens County Indictment No. 2234/01, and an application 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 as academic; 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]). Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]).

The petitioner failed to demonstrate a clear legal right to the relief sought. Ritter, J.P., Feuerstein, H. Miller and Townes, JJ., concur.

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Bluebook (online)

303 A.D.2d 752, 756 N.Y.S.2d 868, 2003 N.Y. App. Div. LEXIS 3345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-grosso-nyappdiv-2003.

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