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Sullivan v. Morgenstern

138 A.D.3d 1006 Court N.Y. App. Div. Decision date 2016-04-20 English

Judges Hall, J.P., Cohen, LaSalle and Connolly, JJ., concur.

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p. 1006
In the Matter of Sean Sullivan, Petitioner, v Esther M. Morgenstern, Justice of the Supreme Court, Kings County, et al., Respondents.
[28 NYS3d 632]

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit Esther M. Morgenstern, a Justice of the Supreme Court, Kings County (IDV Part), from retaining jurisdiction over an action entitled Sullivan v Gilard-Sullivan, which was commenced in the Supreme Court, New York County, under index No. 402111/13, and was consolidated with an action entitled GilardSullivan v Sullivan, commenced in the Supreme Court, Kings County, under index No. 54601/11, and mandamus to compel the respondents Lawrence Knipel and Matthew D’Emic, Administrative Judges of the Supreme Court, Kings County, to assign the action entitled Sullivan v Gilard-Sullivan to a Justice in a civil part of the Supreme Court, Kings County, and application by the petitioner for poor person relief.

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied as academic; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed on the merits, 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

p. 1007
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 extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where 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 [1981]). The petitioner failed to demonstrate a clear legal right to the relief sought.

Hall, J.P., Cohen, LaSalle and Connolly, JJ., concur.

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