Rosenkranz v. H. Patrick Leis III

223 A.D.2d 543, 636 N.Y.S.2d 1013, 1996 N.Y. App. Div. LEXIS 185

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1996
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to (1) enjoin the respondent H. Patrick Leis III, a Justice of the Supreme Court, from enforcing the provisions of an order of the Supreme Court, Suffolk County (Leis, J.), dated November 20, 1995, which, in effect, temporarily restrained the petitioner from proceeding in an action entitled Rosenkranz v Rosenkranz (Index No. 307033/95), pending a further order of that court, (2) enjoin the respondent Leis from issuing any further orders restraining the petitioner from proceeding in that action, and (3) enjoin the respondent Leis from determining a motion for consolidation in an action entitled Rosenkranz v Rosenkranz (Index No. 0579/95) until a motion for consolidation filed in the action entitled Rosenkranz v Rosenkranz (Index No. 307033/95) is determined.

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

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 in this case has failed to demonstrate a clear legal right to the relief sought. Bracken, J. P., Altman, Hart and Goldstein, JJ., concur.