Davison v. Houston

172 A.D.2d 1070

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 1991
• Status: Published

Opinion

Petition unanimously dismissed without costs. Memorandum: We dismiss the petition in this original CPLR article 78 proceeding commenced by petitioners to prohibit their prosecution on a multicount indictment which charges them with violations of the Environmental Conservation Law. The extraordinary remedy of prohibition lies only where petitioners have established a clear legal right to relief and where the action taken or threatened is clearly without jurisdiction or in excess of jurisdiction (see, Matter of State of New York v King, 36 NY2d 59, 62) but does not lie, even if there has been an excess of jurisdiction, if, as here, "there is available an adequate remedy, by way of appeal or otherwise” (Matter of Molea v Marasco, 64 NY2d 718, 720; see also, Matter of Dondi v Jones, 40 NY2d 8, 14, rearg denied 39 NY2d 1058; Matter of State of New York v King, supra, at 62). In view of our determination, we do not address the merits of the petition. (Original Article 78 Proceeding.) Present—Doerr, J. P., Boomer, Green and Davis, JJ.