Sharp v. Cahn

30 A.D.3d 357, 816 N.Y.S.2d 366

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 2006
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to prohibit certain Justices of the Supreme Court, Suffolk County, and certain attorneys from taking part in the actions entitled Sharp v Sharp pending in that court under index No. 27393/99 and Newman & Cahn, LLP v Sharp, pending in that court under index No. 24209/03.

Motion by the New York State respondents, joined in by the other respondents, to dismiss the proceeding.

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.

The petition, insofar as asserted against the petitioner’s former attorneys Neil R. Cahn and Newman & Cahn, LLR must be denied (see CPLR 7802).

With regard to the other respondents, “[b]ecause 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 [1988]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). 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. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Prudenti, EJ., Florio, Krausman and Mastro, JJ., concur.