Majority
Proceeding pursuant to CPLR article 78 in the nature of mandamus and prohibition, inter alia, to compel Bernadette Bayne, a Justice of the Supreme Court, Kings County, to enter two orders in an underlying action entitled Patterson v Raquette Realty, LLC, pending under Kings County index No. 508154/14, and to prohibit that Justice from vacating those orders.
Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.
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]). “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 failed to demonstrate a clear legal right to the relief sought.
Dillon, J.P., Hall, Hinds-Radix and Brathwaite Nelson, JJ., concur.
Cases cited
- Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 at 16 p. 899
- Holtzman v. Goldman 71 NY2d 564 at 569 p. 899
- Rush v. Mordue 68 NY2d 348 at 352 p. 899