Opinion
2003-06101
July 28, 2003.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Robert A. Ross, a Justice of the Supreme Court, Nassau County, from commencing the trial in an underlying action entitled Doria v. Doria, pending in the Supreme Court, Nassau County, under Index No. 204377/01. Application by the respondent Joseph Doria for an award of costs and the imposition of a sanction upon the petitioner pursuant to 22 NYCRR 130-1.1.
Peter S. Gordon, Forest Hills, N.Y., for petitioner.
Eliot Spitzer, Attorney-General, New York, N.Y. (Scott D. Fischer of counsel), for respondent Robert A. Ross.
Del Vecchio Recine, LLP, Garden City, N.Y. (Steven M. Del Vecchio of counsel), for respondent Joseph Doria.
Before: MYRIAM J. ALTMAN, J.P. GLORIA GOLDSTEIN, LEO F. McGINITY, HOWARD MILLER, JJ.
DECISION, ORDER, AND JUDGMENT
ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements; and it is further,
ORDERED that the application is denied, 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). The petitioner failed to demonstrate a clear legal right to the relief sought. In addition, the petitioner has an adequate legal remedy available ( see e.g. Matter of Town of Huntington v. New York State Div. Of Human Rights, 82 N.Y.2d 783; Matter of Dondi v. Jones, 40 N.Y.2d 8).
Under the circumstances of this case, an award of costs and the imposition of a sanction upon the petitioner is not warranted.
ALTMAN, J.P., GOLDSTEIN, McGINITY and H. MILLER, JJ., concur.