Walter v. Donovan

23 A.D.3d 391, 803 N.Y.S.2d 442

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 2005
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from enforcing a judgment entered May 6, 2005, in an action entitled Walter v Walter, commenced in the Supreme Court, Westchester County, under index No. 17328/01.

Motion by the petitioner, in effect, to stay all proceedings to enforce the judgment pending hearing and determination of the proceeding and for leave to prosecute the proceeding as a poor person. Cross motion by the respondents to dismiss the proceeding.

Ordered that the branch of the motion which is for leave to prosecute the proceeding as a poor person is granted to the extent that the filing fee is waived; and it is further,

Ordered that the motion is otherwise denied as academic; and it is further,

Ordered that the cross 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 [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. H. Miller, J.P., Krausman, Rivera and Dillon, JJ., concur.