Opinion
December 7, 1998
Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to enjoin the respondent Justice Fred L. Shapiro from conducting any proceedings in an action entitled McKiernan v. McKiernan, pending in the Supreme Court, Westchester County, under Index No. 22257/92, and to compel Justice Fred L. Shapiro to recuse himself from further involvement in the above action.
Motion by the respondent Fred L. Shapiro to dismiss the proceeding.
Ordered that the motion 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). 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 N.Y.2d 12, 16).
Mangano, P.J., O'Brien, Krausman and Goldstein, JJ., concur.