Webb v. Dutchess County Supreme Court — 270 A.D.2d 278

Majority

p. 278

In the Matter of Edward E. Webb, Petitioner, v Dutchess County Supreme Court et al., Respondents.

[704 NYS2d 858]

—Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to prohibit any court in Dutchess County from ruling on the petitioner’s motion pursuant to CPL 440.10, in an action entitled People v Webb, Dutchess County Indictment No. 179/91, to transfer the motion to another venue for determination, and for poor person relief.

Motion by the respondents to dismiss the proceeding.

Ordered that the branch of the petition which is for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and that branch of the petition is otherwise denied as academic; and it is further,

Ordered that the motion is granted; and it is further,

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

p. 279

“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. O’Brien, J. P., Sullivan, Goldstein and H. Miller, JJ., concur.

Cases cited

Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 at 569 p. 279
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 279
Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 at 16 p. 279