Dillon v. Eiberson

Appellate Division of the Supreme Court of New York

Dillon v. Eiberson

251 A.D.2d 329, 673 N.Y.S.2d 1005, 1998 N.Y. App. Div. LEXIS 6335

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 1, 1998

StatusPublished

Cited by1 cases

This text of 251 A.D.2d 329 (Dillon v. Eiberson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dillon v. Eiberson, 251 A.D.2d 329, 673 N.Y.S.2d 1005, 1998 N.Y. App. Div. LEXIS 6335 (N.Y. Ct. App. 1998).

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Opinion

—In a proceeding pursuant to CPLR article 78 in the nature of prohibition, the appeal is from so much of a judgment of the Supreme Court, Nassau County (Phelan, J.), dated May 21, 1997, as denied the petition.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

It is well settled that the extraordinary remedy of prohibition is available only where there is a clear legal right, and then, in cases where judicial authority is challenged, only where the court acts or threatens to act either without jurisdiction or in excess of its authority (see, Matter of Catterson v Rohl, 202 AD2d 420). Even where a court exceeds its authority, prohibition does not issue as of right, but may issue only in the sound discretion of the court upon consideration of such factors as the gravity of the harm caused, the availability of an adequate remedy on appeal, at law or in equity, and the remedial effectiveness of prohibition (Matter of Catterson v Rohl, supra; see also, Matter of Pirro v Angiolillo, 89 NY2d 351).

Under the circumstances of this case, we find the petition was properly denied. O’Brien, J. P., Pizzuto, Joy and Florio, JJ., concur.

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—In a proceeding pursuant to CPLR article 78 in the nature of prohibition, the appeal is from so much of a judgment of the Supreme Court, Nassau County (Phelan, J.), dated May 21, 1997, as denied the petition.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

It is well settled that the extraordinary remedy of prohibition is available only where there is a clear legal right, and then, in cases where judicial authority is challenged, only where the court acts or threatens to act either without jurisdiction or in excess of its authority (see, Matter of Catterson v Rohl, 202 AD2d 420). Even where a court exceeds its authority, prohibition does not issue as of right, but may issue only in the sound discretion of the court upon consideration of such factors as the gravity of the harm caused, the availability of an adequate remedy on appeal, at law or in equity, and the remedial effectiveness of prohibition (Matter of Catterson v Rohl, supra; see also, Matter of Pirro v Angiolillo, 89 NY2d 351).

Under the circumstances of this case, we find the petition was properly denied. O’Brien, J. P., Pizzuto, Joy and Florio, JJ., concur.

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Bluebook (online)

251 A.D.2d 329, 673 N.Y.S.2d 1005, 1998 N.Y. App. Div. LEXIS 6335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillon-v-eiberson-nyappdiv-1998.

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