Majority
p. 411In the Matter of Thomas Davis, Petitioner, v Michael A. Gary et al., Respondents. [619 NYS2d 592]
—Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to compel the respondent Michael A. Gary to render a decision with regard to the petitioner’s CPL 190.50 motion.
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.
"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only
p. 412
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). Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12 , 16).
The petitioner here has failed to demonstrate a clear legal right to the relief sought. Thompson, J. P., Balletta, Rosenblatt and Florio, JJ., concur.
Cases cited
- Holtzman v. Goldman 71 NY2d 564 at 569 p. 412
- Rush v. Mordue 68 NY2d 348 at 352 p. 412
- Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 at 16 p. 412