DiCicco v. Nicolai — 285 A.D.2d 645

Majority

p. 645

In the Matter of Joseph DiCicco, Petitioner, v Francis A. Nicolai et al., Respondents.

[728 NYS2d 396]

—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to enjoin the respondents from proceeding in a criminal action entitled People v DiCicco, pending in the City Court, City of Peekskill, under Docket No. 01-0010, and a civil action entitled Fidlow v DiCicco, pending in the Village Court, Village of Scarsdale, under Index No. 2000 CTV 26T/SC.

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

p. 646

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). The petitioner has failed to demonstrate a clear legal right to the relief sought. Santucci, J. P., Krausman, McGinity and Feuerstein, JJ., concur.

Cases cited

Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 at 569 p. 646
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 646