Barnes v. Grosso — 290 A.D.2d 553

Majority

p. 553

In the Matter of Derrick Barnes, Petitioner, v Joseph Grosso, as Justice of the Supreme Court of the State of New York, et al., Respondents.

[737 NYS2d 299]

Proceeding pursuant to CPLR article 78 in the nature of prohibition and

p. 554

mandamus, inter alia, to prohibit the trial of the criminal action entitled People v Barnes pending in the Supreme Court, Queens County, under Indictment No. 2234/2001.

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 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. of Sullivan County v Scheinman, 53 NY2d 12 , 16).

The petitioner has failed to demonstrate a clear legal right to the relief sought. Goldstein, J.P., Friedmann, McGinity and Cozier, JJ., concur.

Cases cited

Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 at 569 p. 554
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 554
Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 at 16 p. 554