Brock v. Murphy — 153 A.D.3d 707

Majority

p. 707

In the Matter of Mandel Brock, Petitioner, v Martin Murphy et al., Respondents.

[57 NYS3d 896]

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondents from proceeding with an underlying criminal prosecution entitled People v Brock, pending in the Supreme Court, Kings County, under indictment No. 9543/ 16, and in the nature of mandamus to compel the respondents to dismiss the indictment, 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; 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 threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman, 71 NY2d

p. 708

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.

Eng, P.J., Roman, LaSalle and Connolly, JJ., concur.

Cases cited

Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 708
Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 at 16 p. 708