Opinion
275 A.D.2d 786 714 N.Y.S.2d 220 In the Matter of Janis A. Parazzelli, Petitioner, v. Anthony F. Marano, as Justice of the Supreme Court of the State of New York, et al., Respondents. Supreme Court of New York, Second Department September 25, 2000.
Proceeding pursuant to CPLR article 78 in the nature of mandamus and prohibition, inter alia, to compel the respondent Anthony F. Marano, a Justice of the Supreme Court, Nassau County, to enter a judgment in favor of the petitioner and against nonparty Raymond Portelli in the underlying action entitled Portelli v Portelli, pending in the Supreme Court, Nassau County, under Index No. 6646/97, and to prohibit the respondents from making any determination with respect to the Law Guardian in that action, including presiding over a fee hearing.
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 has failed to demonstrate a clear legal right to the relief sought.
Mangano, P. J., Bracken, O'Brien and Ritter, JJ., concur.