Opinion
2003-06374
September 15, 2003.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent, Michael Brennan, a Justice of the Supreme Court, Kings County, from deciding any motions submitted by the petitioner's assigned counsel, and from enforcing a policy preventing a defendant who is represented by counsel from filing motions and/or proceedings for a writ of habeas corpus pro se, and application for leave to prosecute the proceeding as a poor person and for the assignment of counsel.
Keith McDay, East Elmhurst, N.Y., petitioner pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Samantha Magnani of counsel), nonparty pro se.
Before: SONDRA MILLER, J.P., LEO F. McGINITY, STEPHEN G. CRANE, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION, ORDER JUDGMENT
ORDERED that the application for leave to prosecute the proceeding as a poor person 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). The petitioner has failed to demonstrate a clear legal right to the relief sought ( see Matter of Williams v. Zambelli, 267 A.D.2d 243; Matter of Valle v. Moskowitz, 186 A.D.2d 572).
S. MILLER, J.P., McGINITY, CRANE, COZIER and RIVERA, JJ., concur.