Chais v. Kohn

173 A.D.2d 702, 571 N.Y.S.2d 1011, 1991 N.Y. App. Div. LEXIS 8201

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1991
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus to (1) prohibit the respondent Justice Joseph J. Saladino from presiding over the underlying matrimonial action currently pending in Supreme Court, Nassau County, under Index Number 20617/90, and (2) direct the respondent Justice Joseph J. Saladino to reassign the case to the respondent Justice Gabriel S. Kohn, or alternatively, to send the case back to the Clerk of the Supreme Court, Nassau County, for random reassignment, in which the respondent Justices have moved to dismiss the petition.

Ordered that the motion to dismiss is granted; and it is further,

Adjudged that 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; accord, Matter of Rush v Mordue, 68 NY2d 348, 353). Likewise, the extraordinary remedy of mandamus lies to compel the performance of a purely ministerial act only where there is a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). Since the petitioner has failed to demonstrate a clear legal right to either of these extraordinary remedies which transcends a question of substantive or procedural law, and which could not otherwise be safeguarded through alternative remedies (see, Matter of Lipari v Owens, 70 NY2d 731; Matter of Rush v Mordue, supra; Matter of Molea v Marasco, 64 NY2d 718), the proceeding is dismissed. Mangano, P. J., Thompson, Brown, Kunzeman and Kooper, JJ., concur.