Calvert v. Fisher

267 A.D.2d 236, 699 N.Y.S.2d 289, 1999 N.Y. App. Div. LEXIS 12629

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1999
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, in effect, to challenge the use by the respondents of the petitioner’s Federal misdemeanor conviction against him in an action entitled People v Calvert, Queens County Indictment No. 710/96, and application by the petitioner for poor person relief.

Motion by the respondents Steven Fisher and Jaime Rios, Justices of the Supreme Court, to dismiss the proceeding.

Application by the People of the State of New York to dismiss the proceeding.

Ordered that the application for poor person relief is granted; and it is further,

Ordered that the motion and the application to dismiss the proceeding are granted; 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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought. Sullivan, J. P., Joy, Krausman and Luciano, JJ., concur.