Matter of Crispino v. Chun

142 A.D.3d 1169, 37 N.Y.S.3d 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2016
• Docket: 2016-07209
• Status: Published

Opinion

Proceeding pursuant to CPLR

article 78, inter alia, in the nature of prohibition to prohibit any further prosecution of certain charges in an action entitled People v Crispino, pending in the Supreme Court, Kings County, under indictment No. 4318/15, or, in the alternative, in the nature of mandamus to compel the respondent Danny K. Chun, a Justice of the Supreme Court, Kings County, to determine the petitioner’s pro se motion for certain relief in that action, and application by the petitioner for poor person relief.

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied as academic; and it is further,

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 [1988]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where 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 failed to demonstrate a clear legal right to the relief sought.

Eng, P.J., Leventhal, Hinds-Radix and Connolly, JJ., concur.