Guldi v. Spota

Appellate Division of the Supreme Court of New York

Guldi v. Spota

65 A.D.3d 1044, 886 N.Y.S.2d 40

Appellate Division of the Supreme Court of the State of New York·Decided September 8, 2009·Published·Cited by 1 cases

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to compel the respondents to return certain attorney files seized on February 3, 2009 from the petitioner’s law office and to prohibit “the use, dissemination, duplication of any and all material seized.”

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

“Because of its extraordinary nature, prohibition is available [1045] only where there is a clear legal right, and then only when a court—in case 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]). 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. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]).

The petitioner has failed to demonstrate a clear legal right to the relief sought. Rivera, J.P., Spolzino, Angiolillo and Balkin, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to compel the respondents to return certain attorney files seized on February 3, 2009 from the petitioner’s law office and to prohibit “the use, dissemination, duplication of any and all material seized.”

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

“Because of its extraordinary nature, prohibition is available [1045] only where there is a clear legal right, and then only when a court—in case 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]). 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. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]).

The petitioner has failed to demonstrate a clear legal right to the relief sought. Rivera, J.P., Spolzino, Angiolillo and Balkin, JJ., concur.

Guldi v. Spota, 65 A.D.3d 1044, 886 N.Y.S.2d 40 (N.Y. Ct. App. 2009).

Pincite

65 A.D.3d 1044 (Guldi v. Spota) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related