Parazzelli v. Marano — 275 A.D.2d 786

Majority

p. 786

In the Matter of Janis A. Parazzelli, Petitioner, v Anthony F. Marano, as Justice of the Supreme Court of the State of New York, et al., Respondents.

[714 NYS2d 220]

—Proceeding pursuant to CPLR article . 78 in the nature of mandamus and prohibition, inter alia, to compel the respondent Anthony F. Maraño, a Justice of the Supreme Court, Nassau County, to enter a judgment in favor of the petitioner and against nonparty Raymond Portelli in the underlying action entitled Portelli v Portelli, pending in the Supreme Court, Nassau County, under Index No. 6646/97, and to prohibit the respondents from making any determination with respect to the Law Guardian in that action, including presiding over a fee hearing.

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 when a court — in cases where judicial authority is challenged — acts or threatens to act either without jurisdiction or in excess of its

p. 787

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. Mangano, P. J., Bracken, O’Brien and Ritter, JJ., concur.

Cases cited

Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 at 569 p. 787
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 787
Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 at 16 p. 787