Walter v. Neary — 87 A.D.3d 749

Majority

p. 749

In the Matter of Margarita T. Walter, Petitioner, v Robert Neary et al., Respondents.

[928 NYS2d 865]

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 extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when 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. Skelos, J.E, Balkin, Austin and Sgroi, JJ., concur.

Cases cited

Holtzman v. Goldman 71 NY2d 564 N.Y. 1988-04-26 at 569 p. 749
Rush v. Mordue 68 NY2d 348 N.Y. 1986-11-18 at 352 p. 749
Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 N.Y. 1981-05-12 at 16 p. 749