Smith v. Cohen

55 A.D.3d 841, 865 N.Y.S.2d 588

Opinion

pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent, Jeffrey Cohen, a Justice of the County Court, Westchester County, from proceeding with the trial in an action entitled People v Smith, pending in that court under indictment No. 08-00084.

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 [1988]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Spolzino, J.E, Ritter, Santucci and Garni, JJ., concur.