Cooper v. Judges &/or Justices

217 A.D.2d 698, 630 N.Y.S.2d 260, 1995 N.Y. App. Div. LEXIS 8174

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 31, 1995
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to enjoin the respondents from conducting any further proceedings on Westchester County Indictment No. 94-01364.

Motion by the respondent Judges and/or Justices of the Westchester County Court to dismiss the proceeding.

Upon the petition and the papers filed in support of the petition and the papers filed in opposition thereto and in support of the motion, it is

Ordered that the motion is 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 in this case has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Bracken, Balletta, Pizzuto and Hart, JJ., concur.