McKiernan v. Shapiro

Appellate Division of the Supreme Court of New York

McKiernan v. Shapiro

256 A.D.2d 346, 682 N.Y.S.2d 613, 1998 N.Y. App. Div. LEXIS 13218

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

DecidedDecember 7, 1998

StatusPublished

This text of 256 A.D.2d 346 (McKiernan v. Shapiro) 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.

Bluebook

McKiernan v. Shapiro, 256 A.D.2d 346, 682 N.Y.S.2d 613, 1998 N.Y. App. Div. LEXIS 13218 (N.Y. Ct. App. 1998).

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Opinion

—Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to enjoin the respondent Justice Fred L. Shapiro from conducting any proceedings in an action entitled McKiernan v McKiernan, pending in the Supreme Court, Westchester County, under Index No. 22257/92, and to compel Justice Fred L. Shapiro to recuse himself from further involvement in the above action.

Motion by the respondent Fred L. Shapiro to dismiss the proceeding.

Ordered that the motion is granted; and it is further,

[347]*347Adjudged 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). Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when 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). Mangano, P. J., O’Brien, Krausman and Goldstein, JJ., concur.

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—Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to enjoin the respondent Justice Fred L. Shapiro from conducting any proceedings in an action entitled McKiernan v McKiernan, pending in the Supreme Court, Westchester County, under Index No. 22257/92, and to compel Justice Fred L. Shapiro to recuse himself from further involvement in the above action.

Motion by the respondent Fred L. Shapiro to dismiss the proceeding.

Ordered that the motion is granted; and it is further,

[347]*347Adjudged 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). Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when 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). Mangano, P. J., O’Brien, Krausman and Goldstein, JJ., concur.

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Bluebook (online)

256 A.D.2d 346, 682 N.Y.S.2d 613, 1998 N.Y. App. Div. LEXIS 13218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckiernan-v-shapiro-nyappdiv-1998.

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