Matter of Nelson v. Minardo

125 A.D.3d 778, 999 N.Y.S.2d 763

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2015
• Docket: 2014-11899
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit Philip G. Minardo, a Justice of the Supreme Court, Richmond County, from, inter alia, vacating a prior order of the same court dated August 5, 2011.

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 failed to establish a clear legal right to relief in the nature of prohibition.

Rivera, J.P., Miller, Hinds-Radix and Duffy, JJ., concur.