Osborne v. Dolan — 303 A.D.2d 759

Majority

p. 759

In the Matter of George R. Osborne, on Behalf of John McGuire, Petitioner, v Thomas J. Dolan et al., Respondents.

[757 NYS2d 463]

—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Thomas J. Dolan, a Judge of the County Court and acting Justice of the Supreme Court, from disqualifying the petitioner from representing John McGuire, a defendant in a criminal action entitled People v McGuire, pending in the County Court, Dutchess County, under Indictment No. 128/2002.

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 [1988]; see, Matter of Rush v Mordue, 68 NY2d 348 , 352 [1986]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Ritter, J.P., Feuerstein, H. Miller and Townes, JJ., concur.

Cases cited

Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 at 569 p. 759
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 759