Gutman v. Schmidt

117 A.D.3d 1050, 986 N.Y.S.2d 343

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 2014
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the appointment of a temporary receiver in an action entitled Klein v Gutman, pending in the Supreme Court, Kings County, under index No. 47485/01, and counterclaims by the respondent Zalman Klein, inter alia, for an award of counsel fees and the imposition of sanctions pursuant to 22 NYCRR 130-1.1.

Adjudged that the petition and the counterclaims are denied and the proceeding is dismissed on the merits, 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 petitioner failed to establish a clear legal right to relief in the nature of prohibition.

The counterclaims by the respondent Zalman Klein, inter alia, for an award of counsel fees and the imposition of sanctions pursuant to 22 NYCRR 130-1.1 are denied.

Balkin, J.E, Chambers, Cohen and Duffy, JJ., concur.