McDay v. Brennan

Appellate Division of the Supreme Court of New York

McDay v. Brennan

308 A.D.2d 492, 764 N.Y.S.2d 650, 2003 N.Y. App. Div. LEXIS 9346

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

DecidedSeptember 15, 2003

StatusPublished

This text of 308 A.D.2d 492 (McDay v. Brennan) 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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McDay v. Brennan, 308 A.D.2d 492, 764 N.Y.S.2d 650, 2003 N.Y. App. Div. LEXIS 9346 (N.Y. Ct. App. 2003).

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Opinion

—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent, Michael Brennan, a Justice of the Supreme Court, Kings County, from deciding any motions submitted by the petitioner’s assigned counsel, and from enforcing a policy preventing a [493]*493defendant who is represented by counsel from filing motions and/or proceedings for a writ of habeas corpus pro se, and application for leave to prosecute the proceeding as a poor person and for the assignment of counsel.

Ordered that the application for leave to prosecute the proceeding as a poor person is granted; and it is further,

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 [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 (see Matter of Williams v Zambelli, 267 AD2d 243 [1999]; Matter of Valle v Moskowitz, 186 AD2d 572 [1992]). S. Miller, J.P., McGinity, Crane, Cozier and Rivera, JJ., concur.

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—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent, Michael Brennan, a Justice of the Supreme Court, Kings County, from deciding any motions submitted by the petitioner’s assigned counsel, and from enforcing a policy preventing a [493]*493defendant who is represented by counsel from filing motions and/or proceedings for a writ of habeas corpus pro se, and application for leave to prosecute the proceeding as a poor person and for the assignment of counsel.

Ordered that the application for leave to prosecute the proceeding as a poor person is granted; and it is further,

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 [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 (see Matter of Williams v Zambelli, 267 AD2d 243 [1999]; Matter of Valle v Moskowitz, 186 AD2d 572 [1992]). S. Miller, J.P., McGinity, Crane, Cozier and Rivera, JJ., concur.

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Bluebook (online)

308 A.D.2d 492, 764 N.Y.S.2d 650, 2003 N.Y. App. Div. LEXIS 9346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcday-v-brennan-nyappdiv-2003.

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