Wingate v. Kron

253 A.D.2d 884, 678 N.Y.S.2d 512, 1998 N.Y. App. Div. LEXIS 9900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1998
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from proceeding with the matter entitled People v Wingate pending in the Supreme Court, Queens County, under Indictment No. 11087/97.

Application by the petitioner for poor person relief and the assignment of counsel.

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

Ordered that the branch of the application which is for poor person relief is granted; and it is further,

Ordered that the application is otherwise denied; 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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought. Pizzuto, J. P., Joy, Altman and Friedmann, JJ., concur.