Graziano v. Bivona

41 A.D.3d 476, 835 N.Y.S.2d 913

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 2007
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent John C. Bivona, a Justice of the Supreme Court, Suffolk County, from enforcing an order imposing sanctions on the petitioner Christopher J. Cassar pursuant to 22 NYCRR 130-1.1.

Cross motion by the respondent John C. Bivona, a Justice of the Supreme Court, Suffolk County, to dismiss the proceeding on the ground that the petition fails to state a claim upon which relief can be granted.

Ordered that the cross 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 [1988]; see, Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The petitioners have failed to demonstrate a clear legal right to the relief sought. Ritter, J.P., Goldstein, Fisher and Balkin, JJ., concur.