Cleopa v. Durante , 632 N.Y.S.2d 968 ( 1995 )

—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to compel the Honorable Joan Marie Durante to recuse herself from hearing or deciding any matters relating to the case of Petras v Cleopa pending in the Supreme Court, Queens County.

Motion by the respondent to dismiss the proceeding.

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

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

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; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Bracken, Sullivan, Rosenblatt and Thompson, JJ., concur.