LaMorie v. Joy

Appellate Division of the Supreme Court of New York

LaMorie v. Joy

163 A.D.2d 387, 559 N.Y.S.2d 656, 1990 N.Y. App. Div. LEXIS 8860

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

DecidedJuly 9, 1990

StatusPublished

This text of 163 A.D.2d 387 (LaMorie v. Joy) 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

LaMorie v. Joy, 163 A.D.2d 387, 559 N.Y.S.2d 656, 1990 N.Y. App. Div. LEXIS 8860 (N.Y. Ct. App. 1990).

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Opinion

Proceeding pursuant to CPLR article 78, inter alia, to prohibit the respondents, Daniel W. Joy, a Justice of the Supreme Court, and John J. Santucci, the District Attorney of Queens County, from taking any further proceedings in connection with Queens County indictment Number 4127/89.

Adjudged that the petition is 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; accord, Matter of Rush v Mordue, 68 NY2d 348, 352). Inasmuch as the petitioner has failed to demonstrate a clear legal right to this remedy which transcends a question of substantive or procedural law, and which could not otherwise be safeguarded through the alternative remedy of appeal (see, Matter of Lipari v Owens, 70 NY2d 731; Matter of Rush v Mordue, 68 NY2d 348, supra; Matter of Molea v Marasco, 64 NY2d 718), the proceeding is dismissed. Kunzeman, J. P., Rubin, Eiber, Miller and O’Brien, JJ., concur.

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Proceeding pursuant to CPLR article 78, inter alia, to prohibit the respondents, Daniel W. Joy, a Justice of the Supreme Court, and John J. Santucci, the District Attorney of Queens County, from taking any further proceedings in connection with Queens County indictment Number 4127/89.

Adjudged that the petition is 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; accord, Matter of Rush v Mordue, 68 NY2d 348, 352). Inasmuch as the petitioner has failed to demonstrate a clear legal right to this remedy which transcends a question of substantive or procedural law, and which could not otherwise be safeguarded through the alternative remedy of appeal (see, Matter of Lipari v Owens, 70 NY2d 731; Matter of Rush v Mordue, 68 NY2d 348, supra; Matter of Molea v Marasco, 64 NY2d 718), the proceeding is dismissed. Kunzeman, J. P., Rubin, Eiber, Miller and O’Brien, JJ., concur.

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Bluebook (online)

163 A.D.2d 387, 559 N.Y.S.2d 656, 1990 N.Y. App. Div. LEXIS 8860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamorie-v-joy-nyappdiv-1990.

Opinion

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