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Lupo v. Hurowitz

210 A.D.2d 335 Court N.Y. App. Div. Decision date 1994-12-12 English

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p. 335
In the Matter of William Lupo, Petitioner, v Barry Hurowitz et al., Respondents.
[620 NYS2d 289]

—Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to prohibit the Honorable Barry Hurowitz, any other Justice of the Supreme. Court, Kings County, Republic National Bank of New York, and Jennifer Lupo, from taking any action with respect to Kings County Index No. 26021/93, and to compel Justice . Hurowitz to dismiss that matter.

Motions by the respondents to dismiss the proceeding.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto, and the papers filed in support of the motions and in opposition thereto, it is • Ordered that the motions are granted; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

p. 336
"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). 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., Lawrence, O’Brien and Friedmann, JJ., concur.

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