Matter of Sullivan v. Morgenstern

127 A.D.3d 980, 4 N.Y.S.3d 909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 2015
• Docket: 2015-00305
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the Kings County Integrated Domestic Violence Part from retaining jurisdiction over any action involving the petitioner that originated in the Family Court, Kings County, or the Supreme Court, Kings County, and to direct the respondent Administrative Judges to ensure that those actions are adjudicated in their courts of original jurisdiction, 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; 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.

Rivera, J.P., Austin, Sgroi and Barros, JJ., concur.