Price v. Rath

177 A.D.2d 1057

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1991
• Status: Published

Opinion

Petition unanimously dismissed without costs. Memorandum: We dismiss the petition in this original CPLR article 78 proceeding commenced by petitioner to prohibit his prosecution on an indictment which charges him with criminal possession of a controlled substance in the first degree and conspiracy in the second degree. ”[T]he extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court (if a court is involved) acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction” (Matter of Rush v Mordue, 68 NY2d 348, 352), but does not lie, even if there has been an excess of jurisdiction, if, as here, "there is available an adequate remedy, by way of appeal or otherwise” (Matter of Molea v Marasco, 64 NY2d 718, 720; see also, Matter of Dondi v Jones, 40 NY2d 8, 14, rearg denied 39 NY2d 1058; Matter of Davison v Houston, 172 AD2d 1070). In view of our determination, we do not address the merits of the petition. (Original Article 78 Proceeding.) Present—Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.