Summary
In Razza v. LP Petroleum Corporation, 153 A.D.2d 740 (2d Dept. 2017), the Court reiterated the proposition that, in a trip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that plaintiff cannot identify the cause of his or her fall.
Summary of this case from Adkins v. Doherty Enters.Opinion
August 28, 1989
Appeal from the County Court, Sufflok County (Cacciabaudo, J.).
Ordered that the application to seal the record of this proceeding is granted, without costs or disbursements; and it is further,
Adjudged that the proceeding is dismissed, without costs or disbursements, and the temporary stay of all proceedings granted by Justice Lawrence in an order to show cause dated July 6, 1989, is vacated.
The extraordinary remedy of prohibition does not lie as a means of seeking collateral review of an alleged error of law in a pending criminal matter (see, Matter of Kramer v. Rosenberger, 107 A.D.2d 748, 749). "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; accord, Matter of Rush v. Mordue, 68 N.Y.2d 348, 353). Moreover, even if prohibition lies and an act in excess of power is perceived, the remedy is not granted as of right but, rather, is within the sound discretion of the reviewing court (Matter of Holtzman v. Goldman, supra).
Under the circumstances, we conclude that prohibition does not lie to obtain collateral review of an order directing a suspect in a homicide investigation to supply corporeal evidence (see, Matter of James N. v. D'Amico, 139 A.D.2d 302; Matter of David M. v. Dwyer, 107 A.D.2d 884). In the event of his ultimate conviction, the petitioner's remedy would be by direct appeal from the judgment (see, Matter of Lipari v. Owens, 70 N.Y.2d 731; Matter of Molea v. Marasco, 64 N.Y.2d 718). Mollen, P.J., Thompson, Rubin and Spatt, JJ., concur.