Giovanelu v. Finnegan — 207 A.D.2d 782

Majority

p. 782

In the Matter of Federico Giovanelu et al., Petitioners, v Lawrence J. Finnegan et al., Respondents.

[616 NYS2d 974]

—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from proceeding with a retrial of the petitioners under Queens County Indictment No. 518/86.

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

p. 783

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 petitioners here have failed to demonstrate a clear legal right to the relief sought. Sullivan, J. P., Miller, Pizzuto and Altman, JJ., concur.

Cases cited

Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 at 569 p. 783
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 783