Daniel P. v. Rienzi

Appellate Division of the Supreme Court of New York

Daniel P. v. Rienzi

243 A.D.2d 567, 665 N.Y.S.2d 292, 1997 N.Y. App. Div. LEXIS 9845

Appellate Division of the Supreme Court of the State of New York·Decided October 14, 1997·Published

Opinion

Proceeding pursu[568]*568ant to CPLR article 78 to prohibit the respondents from enforcing an order of the Supreme Court, Richmond County (Rienzi, J.), dated September 15, 1997, which directed the petitioner to furnish samples of his blood and hair, to submit to the taking of his palm prints, and to appear in lineups in connection with the investigation of the death of a named individual.

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

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 here has failed to demonstrate a clear right to the relief sought (see, Matter of Abe A., 56 NY2d 288; Matter of Vivanco v West, 214 AD2d 618). Mangano, P. J., Bracken, Rosenblatt, Miller and O’Brien, JJ., concur.

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Proceeding pursu[568]*568ant to CPLR article 78 to prohibit the respondents from enforcing an order of the Supreme Court, Richmond County (Rienzi, J.), dated September 15, 1997, which directed the petitioner to furnish samples of his blood and hair, to submit to the taking of his palm prints, and to appear in lineups in connection with the investigation of the death of a named individual.

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

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 here has failed to demonstrate a clear right to the relief sought (see, Matter of Abe A., 56 NY2d 288; Matter of Vivanco v West, 214 AD2d 618). Mangano, P. J., Bracken, Rosenblatt, Miller and O’Brien, JJ., concur.

Daniel P. v. Rienzi, 243 A.D.2d 567, 665 N.Y.S.2d 292, 1997 N.Y. App. Div. LEXIS 9845 (N.Y. Ct. App. 1997).

Pincite

243 A.D.2d 567 (Daniel P. v. Rienzi) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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