Aguilar v. Stack — 291 A.D.2d 448

Majority

p. 448

In the Matter of Elba Aguilar, Petitioner, v Elaine J. Stack, as Justice of the Supreme Court of the State of New York, Respondent.

[737 NYS2d 547]

—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent, Elaine Jackson Stack, a Justice of the Supreme Court, from making any determination in an action entitled Sci v Sci, pending in the Supreme Court, Nassau County, under Index No. 2862/2001, that may affect the person or property of the petitioner.

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). The petitioner has failed to demonstrate a clear legal right to the relief sought. Santucci, J.P., Altman, Florio and Goldstein, JJ., concur.

Cases cited

Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 at 569 p. 448
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 448