McCarthy v. Demarest

Appellate Division of the Supreme Court of New York

McCarthy v. Demarest

208 A.D.2d 929, 618 N.Y.S.2d 581, 1994 N.Y. App. Div. LEXIS 10602

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

DecidedOctober 31, 1994

StatusPublished

This text of 208 A.D.2d 929 (McCarthy v. Demarest) 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.

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McCarthy v. Demarest, 208 A.D.2d 929, 618 N.Y.S.2d 581, 1994 N.Y. App. Div. LEXIS 10602 (N.Y. Ct. App. 1994).

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Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition (designated as one in the nature of mandamus), inter alia, to enjoin the respondent from enforcing an order of the Supreme Court, Kings County, dated July 27, 1994, which upon reargument denied his motion to dismiss Indictment No. 1448/94, and to stay all proceedings in the criminal action.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto, it is

Adjudged that the petition is denied and the proceeding is dismissed, 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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Thompson, Sullivan and Miller, JJ., concur.

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Proceeding pursuant to CPLR article 78 in the nature of prohibition (designated as one in the nature of mandamus), inter alia, to enjoin the respondent from enforcing an order of the Supreme Court, Kings County, dated July 27, 1994, which upon reargument denied his motion to dismiss Indictment No. 1448/94, and to stay all proceedings in the criminal action.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto, it is

Adjudged that the petition is denied and the proceeding is dismissed, 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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Thompson, Sullivan and Miller, JJ., concur.

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Bluebook (online)

208 A.D.2d 929, 618 N.Y.S.2d 581, 1994 N.Y. App. Div. LEXIS 10602, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarthy-v-demarest-nyappdiv-1994.

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