Opinion
2003-05496
August 18, 2003.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Robert J. Hanophy, a Justice of the Supreme Court, Queens County, from commencing trial in an underlying criminal action entitled People v. Popal, pending under Queens County Indictment No. 2186/02.
Stuart Tarshis, Forest Hills, N.Y., for petitioner.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John Castellano of counsel), respondent pro se.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, HOWARD MILLER, JJ.
DECISION JUDGMENT
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 Wright v. Greenberg, 296 A.D.2d 463). Under the circumstances of this case, the petitioner failed to demonstrate a clear legal right to the relief sought ( see generally People v. Giordano, 87 N.Y.2d 441).
ALTMAN, J.P., GOLDSTEIN, McGINITY and H. MILLER, JJ., concur.