Opinion
November 30, 1998
Appeal from the Supreme Court, Queens County, under Indictment No. 3496/96.
Motion by the respondent to dismiss the proceeding.
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 N.Y.2d 564, 569; see, Matter of Rush v. Mordue, 68 N.Y.2d 348, 352). Similarly, 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. v. Scheinman, 53 N.Y.2d 12, 16).
The petitioner here has failed to demonstrate a clear legal right to the relief sought.
Bracken, J. P., Miller, Ritter and Thompson, JJ., concur.