Majority
p. 337In the Matter of Erasmo Torres, Petitioner, v Charles J. Hynes, as District Attorney of the County of Kings, et al., Respondents. [725 NYS2d 888]
—Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to prohibit the trial of the criminal action entitled People v Torres pending in the Supreme Court, Kings County, under Indictment No. 5395/00.
Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.
p. 338
“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. Santucci, J. P., Goldstein, Feuerstein and Crane, JJ., concur.
Cases cited
- Holtzman v. Goldman 71 NY2d 564 at 569 p. 338
- Rush v. Mordue 68 NY2d 348 at 352 p. 338
- Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 at 16 p. 338