Mitchell v. DiMango

Appellate Division of the Supreme Court of New York

Mitchell v. DiMango

100 A.D.3d 1001, 954 N.Y.S.2d 459

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

DecidedNovember 28, 2012

StatusPublished

This text of 100 A.D.3d 1001 (Mitchell v. DiMango) 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

Mitchell v. DiMango, 100 A.D.3d 1001, 954 N.Y.S.2d 459 (N.Y. Ct. App. 2012).

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Opinion

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondents from proceeding with an underlying criminal prosecution entitled People v Mitchell, pending in the Supreme Court, Kings County, under indictment No. 4743/2010, and in the nature of mandamus to compel the respondents to allow him to subpoena certain information, and application to waive the filing fee imposed by CPLR 8022 (b).

Ordered that the application to waive the filing fee imposed by CPLR 8022 (b) is granted; 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 has failed to demonstrate a clear legal right to the relief sought. Skelos, J.P, Balkin, Dickerson and Hinds-Radix, JJ., concur.

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Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondents from proceeding with an underlying criminal prosecution entitled People v Mitchell, pending in the Supreme Court, Kings County, under indictment No. 4743/2010, and in the nature of mandamus to compel the respondents to allow him to subpoena certain information, and application to waive the filing fee imposed by CPLR 8022 (b).

Ordered that the application to waive the filing fee imposed by CPLR 8022 (b) is granted; 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 has failed to demonstrate a clear legal right to the relief sought. Skelos, J.P, Balkin, Dickerson and Hinds-Radix, JJ., concur.

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Bluebook (online)

100 A.D.3d 1001, 954 N.Y.S.2d 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-dimango-nyappdiv-2012.

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