Williams v. Hynes , 678 N.Y.S.2d 277 ( 1998 )

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to preclude the respondents from prosecuting the petitioner under Kings County Indictment No. 10364/97 and for leave to prosecute the proceeding as a poor person.

Motion by the respondent Honorable Joseph A. Silverman to dismiss the proceeding.

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

Ordered that the motion is granted; and it is further,

Adjudged that the petition is otherwise 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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought. Sullivan, J. P., Altman, Friedmann and Mc-Ginity, JJ., concur.