Smith v. Gribetz — 211 A.D.2d 605

Majority

p. 605

Second Department,

January, 1995

(January 4,1995)

In the Matter of James F. Smith, Petitioner, v Kenneth Gribetz et al., Respondents.

[621 NYS2d 883]

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from continuing the prosecution of the petitioner under Rockland County Indictment No. 137/94 on the ground, inter alia, of lack of jurisdiction.

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

Relief in the nature of a writ of prohibition is available only where there is a clear legal right, and then only where a court acts or threatens to act either without jurisdiction or in excess of its authorized powers (Matter of Holtzman v Goldman, 71 NY2d 564 , 569; Matter of Rush v Mordue, 68 NY2d 348 , 352; Matter of Steingut v Gold, 42 NY2d 311 , 315-316). The petitioner has failed to demonstrate a clear legal right to the relief sought. Bracken, J. P., Sullivan, Rosenblatt, Miller and Thompson, JJ., concur.

Cases cited

Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 at 569 p. 605
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 605
Steingut v. Gold 42 NY2d 311 N.Y. 1977-07-14 at 315-316 p. 605