Rose v. Silverman

Appellate Division of the Supreme Court of New York

Rose v. Silverman

259 A.D.2d 703, 685 N.Y.S.2d 619, 1999 N.Y. App. Div. LEXIS 2726

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

DecidedMarch 22, 1999

StatusPublished

This text of 259 A.D.2d 703 (Rose v. Silverman) 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

Rose v. Silverman, 259 A.D.2d 703, 685 N.Y.S.2d 619, 1999 N.Y. App. Div. LEXIS 2726 (N.Y. Ct. App. 1999).

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Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, to prohibit the respondents from enforcing an order denying the petitioner’s motion to dismiss Kings County Indictment No. 4790/98.

Application by the petitioner for poor person relief.

Motion by the respondents to dismiss the proceeding.

Ordered that the application for poor person relief is granted; and it is further,

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). 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 here has failed to demonstrate a clear legal right to the relief sought. Bracken, J. P., Sullivan, Altman and Friedmann, JJ., concur.

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Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, to prohibit the respondents from enforcing an order denying the petitioner’s motion to dismiss Kings County Indictment No. 4790/98.

Application by the petitioner for poor person relief.

Motion by the respondents to dismiss the proceeding.

Ordered that the application for poor person relief is granted; and it is further,

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). 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 here has failed to demonstrate a clear legal right to the relief sought. Bracken, J. P., Sullivan, Altman and Friedmann, JJ., concur.

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Bluebook (online)

259 A.D.2d 703, 685 N.Y.S.2d 619, 1999 N.Y. App. Div. LEXIS 2726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-silverman-nyappdiv-1999.

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