Matter of Nassau County Socy. for Prevention of Cruelty to Animals v. County of Nassau

2017 NY Slip Op 983, 147 A.D.3d 849, 46 N.Y.S.3d 422

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2017
• Docket: 2016-10956
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, inter alia, in effect, in the nature of prohibition to prohibit a justice of the Supreme Court, Nassau County, from determining an order to show cause returnable November 4, 2016, in an action entitled Moore v Nassau County Socy. for Prevention of Cruelty to Animals, pending under Nassau County index No. 7024/16.

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 petitioner has failed to demonstrate a clear legal right to the relief sought.

Eng, P.J., Balkin, Leventhal and LaSalle, JJ., concur.