Opinion
2014-04-30
In the Matter of Victor JORDAN, appellant, v. Katherine A. LEVINE, etc., et al., respondents.
Victor Jordan, Brooklyn, N.Y., appellant pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Judith Vale of counsel), for respondent Katherine A. Levine.
Victor Jordan, Brooklyn, N.Y., appellant pro se. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Judith Vale of counsel), for respondent Katherine A. Levine.
In a proceeding pursuant to CPLR article 78 in the nature of prohibition to, among other things, prohibit the respondent Katherine A. Levine, a Judge of the Civil Court of the City of New York, Kings County, from presiding over an underlying holdover proceeding entitled Jordan v. Jordan, pending in the Civil Court, Kings County, under Index No. 058672/11, and in the nature of mandamus to compel the respondent Katherine A. Levine to take certain action regarding determinations made on October 20, 2011, and December 14, 2011, the petitioner appeals from a judgment of the Supreme Court, Kings County (Dabiri, J.), dated October 2, 2012, which, in effect, denied the petition and dismissed the proceeding.
ORDERED that the judgment is affirmed, 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 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;see Matter of Robinson v. Spinner, 101 A.D.3d 1130, 956 N.Y.S.2d 502). “Prohibition will not lie, however, simply to correct trial errors” (Matter of Holtzman v. Goldman, 71 N.Y.2d at 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;see Matter of Rush v. Mordue, 68 N.Y.2d 348, 353, 509 N.Y.S.2d 493, 502 N.E.2d 170) and may not be employed as a means of seeking collateral review of mere trial errors of substantive law or procedure, no matter how egregious the error might be ( see Matter of Rush v. Mordue, 68 N.Y.2d at 353, 509 N.Y.S.2d 493, 502 N.E.2d 170;Matter of Brown v. Blumenfeld, 103 A.D.3d 45, 55, 957 N.Y.S.2d 171).
“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” (Matter of Turansky v. Scheinkman, 69 A.D.3d 865, 866, 895 N.Y.S.2d 435;see Matter of Legal Aid Socy. of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542;Matter of Uzamere v. Sunshine, 56 A.D.3d 787, 868 N.Y.S.2d 139). Mandamus will not lie if the action sought to be compelled involves an exercise of discretion or reasoned judgment ( see Matter of Gonzalez v. Village of Port Chester, 109 A.D.3d 614, 615, 970 N.Y.S.2d 600).
Under the circumstances of this case, the Supreme Court properly, in effect, denied the petition and dismissed the proceeding, as the petitioner failed to demonstrate a clear legal right to the relief sought.
The petitioner's contention that the Supreme Court should not have considered the respondent Katherine A. Levine's alleged untimely answer, raised for the first time on appeal, is not properly before this Court. DILLON, J.P., HALL, COHEN and HINDS–RADIX, JJ., concur.