Parazzelli v. Marano

Appellate Division of the Supreme Court of New York

Parazzelli v. Marano

275 A.D.2d 786, 714 N.Y.S.2d 220, 2000 N.Y. App. Div. LEXIS 9362

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

DecidedSeptember 25, 2000

StatusPublished

This text of 275 A.D.2d 786 (Parazzelli v. Marano) 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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Parazzelli v. Marano, 275 A.D.2d 786, 714 N.Y.S.2d 220, 2000 N.Y. App. Div. LEXIS 9362 (N.Y. Ct. App. 2000).

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Opinion

—Proceeding pursuant to CPLR article . 78 in the nature of mandamus and prohibition, inter alia, to compel the respondent Anthony F. Maraño, a Justice of the Supreme Court, Nassau County, to enter a judgment in favor of the petitioner and against nonparty Raymond Portelli in the underlying action entitled Portelli v Portelli, pending in the Supreme Court, Nassau County, under Index No. 6646/97, and to prohibit the respondents from making any determination with respect to the Law Guardian in that action, including presiding over a fee hearing.

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 [787]*787authorized 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. v Scheinman, 53 NY2d 12, 16).

The petitioner has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Bracken, O’Brien and Ritter, JJ., concur.

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—Proceeding pursuant to CPLR article . 78 in the nature of mandamus and prohibition, inter alia, to compel the respondent Anthony F. Maraño, a Justice of the Supreme Court, Nassau County, to enter a judgment in favor of the petitioner and against nonparty Raymond Portelli in the underlying action entitled Portelli v Portelli, pending in the Supreme Court, Nassau County, under Index No. 6646/97, and to prohibit the respondents from making any determination with respect to the Law Guardian in that action, including presiding over a fee hearing.

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 [787]*787authorized 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. v Scheinman, 53 NY2d 12, 16).

The petitioner has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Bracken, O’Brien and Ritter, JJ., concur.

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Bluebook (online)

275 A.D.2d 786, 714 N.Y.S.2d 220, 2000 N.Y. App. Div. LEXIS 9362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parazzelli-v-marano-nyappdiv-2000.

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