Majority
p. 777In the Matter of Timothy McCall, Petitioner, v Sheri Roman, as Justice of the Supreme Court of the State of New York, et al., Respondents. [640 NYS2d 152]
p. 778
"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 has failed to demonstrate a clear legal right to the relief sought. O’Brien, J. P., Ritter, Hart and Goldstein, JJ., concur.
Cases cited
- Holtzman v. Goldman 71 NY2d 564 at 569 p. 778
- Rush v. Mordue 68 NY2d 348 at 352 p. 778
- Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 at 16 p. 778