Richards v. Justices of the Supreme Court

217 A.D.2d 584, 628 N.Y.S.2d 596, 1995 N.Y. App. Div. LEXIS 7692

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1995
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from acting in the absence and in excess of their legal jurisdiction to enforce Penal Law § 160.15.

Motion by the respondents to dismiss the proceeding.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto and in support of the motion, it is

Ordered that the motion 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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Bracken, J. P., Balletta, Pizzuto and Hart, JJ., concur.