Vasile v. Underwood

243 A.D.2d 716, 664 N.Y.S.2d 564, 1997 N.Y. App. Div. LEXIS 10820

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 1997
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent, William L. Underwood, Jr., a Justice of the Supreme Court, from enforcing a judgment of the Supreme Court, Suffolk County, entered August 5, 1994.

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; and it is further,

Ordered that the petitioner is directed to show cause before this Court, in the form of an affidavit, on the issue of the imposition of appropriate costs or sanctions, if any, pursuant to 22 NYCRR 130-1.1 to be imposed on him for his conduct in pursuing a frivolous proceeding; the petitioner shall serve and file his affidavit on or before November 28, 1997; and it is further,

Ordered that the clerk of this Court shall serve a copy of this decision, order, and judgment on the petitioner.

“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 has failed to demonstrate a clear legal right to the relief sought.

Furthermore, by decision and order dated April 28, 1997, this Court affirmed an order of the Supreme Court, Suffolk County, dated August 24, 1995, which denied the appellant’s motion to vacate the judgment which is the subject of the instant proceeding (see, Enright v Vasile, 238 AD2d 543). Accordingly, the petitioner is directed to file an affidavit upon the issue óf why sanctions should not be imposed on him pursuant to 22 NYCRR 130-1.1. Miller, J. P., Thompson, Joy and Luciano, JJ., concur.