Brown v. McGann

Appellate Division of the Supreme Court of New York

Brown v. McGann

259 A.D.2d 748, 687 N.Y.S.2d 412, 1999 N.Y. App. Div. LEXIS 3192

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

DecidedMarch 29, 1999

StatusPublished

This text of 259 A.D.2d 748 (Brown v. McGann) 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.

Bluebook

Brown v. McGann, 259 A.D.2d 748, 687 N.Y.S.2d 412, 1999 N.Y. App. Div. LEXIS 3192 (N.Y. Ct. App. 1999).

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Opinion

Proceed[749]*749ing pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from retrying the petitioners under Queens County Indictment No. N10884/97.

Ordered that, on the Court’s own motion, the respondents’ time to submit an answer to the petition is enlarged nunc pro time until March 17, 1999, and the answer submitted on that day is accepted for filing (see, CPLR 2004); and it is further,

Adjudged that the petition is denied and the proceeding is dismissed on the merits, 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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioners have failed to demonstrate a clear legal right to the relief sought. Santucci, J. P., Krausman, H. Miller and Feuerstein, JJ., concur.

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Proceed[749]*749ing pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from retrying the petitioners under Queens County Indictment No. N10884/97.

Ordered that, on the Court’s own motion, the respondents’ time to submit an answer to the petition is enlarged nunc pro time until March 17, 1999, and the answer submitted on that day is accepted for filing (see, CPLR 2004); and it is further,

Adjudged that the petition is denied and the proceeding is dismissed on the merits, 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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioners have failed to demonstrate a clear legal right to the relief sought. Santucci, J. P., Krausman, H. Miller and Feuerstein, JJ., concur.

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Bluebook (online)

259 A.D.2d 748, 687 N.Y.S.2d 412, 1999 N.Y. App. Div. LEXIS 3192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-mcgann-nyappdiv-1999.

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