Opinion
2006-04686.
August 8, 2006.
Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to prohibit Robert C. McGann, a Justice of the Supreme Court, Queens County, from proceeding with the trial in a criminal action entitled People v Kirkorov, pending in the Supreme Court, Kings County, under indictment No. 2674/03. Motion by the petitioner to stay all proceedings in the Supreme Court, Queens County, under indictment Nos. 2674/03 and 808/05 pending the hearing and determination of this proceeding.
Alex Grosshtern, New York, N.Y. (Raymond J. Zuppa of counsel), for petitioner.
Eliot Spitzer, Attorney-General, New York, N.Y. (Anthony J. Tomari of counsel), for respondents Justices of the Supreme Court of Queens County.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Frances Impellizzeri of counsel), respondent pro se.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (S. Andrew Schaffer and Lori Workstel of counsel), for respondent New York City Police Department.
Bruce A. Lawrence, Brooklyn, N.Y. (R. Alexander Hulten of counsel), for respondent One Beacon Insurance Group.
Jaffe Nohavicka, New York, N.Y. (Joseph D. Nohavicka of counsel), for respondent Country-Wide Insurance Company.
Russo, Keane Toner, LLP, New York, N.Y. (Marilyn Nelson-Cashman of counsel), for American Transit Insurance Company.
Before: Prudenti, P.J., Florio, Miller and Schmidt, JJ.
Motion by the respondent Country-Wide Insurance Company to dismiss the proceeding insofar as asserted against it on the ground that this Court is without jurisdiction.
Ordered that the motion to stay all proceedings under Kings County indictment Nos. 2674/03 and 808/05 pending hearing and determination of this proceeding is denied; and it is further,
Ordered that the motion by Country-Wide Insurance Company to dismiss the proceeding insofar as asserted against it is granted ( see CPLR 506 [b]), and the proceeding insofar as asserted against Country-Wide Insurance Company is dismissed, without costs or disbursements; and it is further,
Adjudged that the petition is denied and the proceeding is dismissed insofar as asserted against the remaining respondents, 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 NY2d 564, 569; see Matter of Rush v Mordue, 68 NY2d 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. of Sullivan County v Scheinman, 53 NY2d 12, 16).
The petitioner here has failed to demonstrate a clear legal right to the relief sought.