Opinion
September 25, 2000.
Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to compel the respondent Eugene Shifrin, a Referee in the Supreme Court, Nassau County, to determine the value of services rendered by the petitioner in the underlying action entitled Scartozzi v. Scartozzi, pending in the Supreme Court, Nassau County, under Index No. 97-30107, and prohibiting the respondent Anthony F. Marano, a Justice of the Supreme Court, Nassau County, from making such a determination.
Janis A. Parazzelli, Floral Park, N.Y., petitioner pro se.
Eliot Spitzer, Attorney-General, New York, N.Y. (David Cohen of counsel) for respondents.
Before: GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, CORNELIUS J. O'BRIEN, DAVID S. RITTER, 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 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 Society of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16).
The petitioner here has failed to demonstrate a clear legal right to the relief sought.