Marino v. Fisher , 632 N.Y.S.2d 470 ( 1995 )

—Proceeding pursuant to CPLR article 78 in the nature of a writ of prohibition.

Motion by the petitioner for leave to prosecute the proceeding as a poor person. Cross motion by the respondent Steven W. Fisher to dismiss the proceeding.

Upon the papers filed in support of the proceeding, the motion, and the cross motion, and upon the papers filed in opposition thereto, it is

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

Adjudged that the petition is denied and the proceeding is dismissed insofar as it is asserted against the respondent Steven W. Fisher, without costs or disbursements; and it is further,

Adjudged that, on the Court’s own motion, the petition is denied and the proceeding is dismissed insofar as it is asserted against the remaining respondent, without costs or disbursements; and it is further,

Ordered that the motion is denied as academic.

"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 in this case has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Sullivan, Balletta and Copertino, JJ., concur.