Henrius v. Honorof

Appellate Division of the Supreme Court of New York

Henrius v. Honorof

111 A.D.3d 828, 975 N.Y.S.2d 356

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

DecidedNovember 20, 2013

StatusPublished

This text of 111 A.D.3d 828 (Henrius v. Honorof) 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

Henrius v. Honorof, 111 A.D.3d 828, 975 N.Y.S.2d 356 (N.Y. Ct. App. 2013).

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Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Alan L. Honorof, an Acting Justice of the Supreme Court, Nassau County, from proceeding to the trial of a criminal action entitled People v Henrius, pending in that court under indictment No. 775N-2011, and, in effect, in the nature of mandamus to compel him to grant the petitioner’s motion to suppress certain evidence.

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]). 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]).

[829]*829The petitioner has failed to demonstrate a clear legal right to the relief sought. Dillon, J.E, Dickerson, Hall and Austin, JJ., concur.

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Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Alan L. Honorof, an Acting Justice of the Supreme Court, Nassau County, from proceeding to the trial of a criminal action entitled People v Henrius, pending in that court under indictment No. 775N-2011, and, in effect, in the nature of mandamus to compel him to grant the petitioner’s motion to suppress certain evidence.

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]). 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]).

[829]*829The petitioner has failed to demonstrate a clear legal right to the relief sought. Dillon, J.E, Dickerson, Hall and Austin, JJ., concur.

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Bluebook (online)

111 A.D.3d 828, 975 N.Y.S.2d 356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henrius-v-honorof-nyappdiv-2013.

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