Durant v. A "Justice of the Supreme Court, Kings County"

207 A.D.2d 542, 616 N.Y.S.2d 65, 1994 N.Y. App. Div. LEXIS 8528

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 29, 1994
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to permit the petitioner to withdraw his plea of guilty entered in People v Durant, Kings County Ind. No. 3291/93.

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). Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16).

The petitioner here has failed to demonstrate a clear legal right to the relief sought. Thompson, J. P., Pizzuto, Joy and Krausman, JJ., concur.