Opinion
October 22, 2001.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from proceeding in an action entitled People v. Kywann Henry, pending in the Supreme Court, Kings County, under Indictment No. 2076/01, and application by the petitioner to prosecute the proceeding as a poor person.
Sheray Parks, East Elmhurst, N.Y., petitioner pro se.
Eliot Spitzer, Attorney-General, New York, N.Y. (Geneith Turnbull of counsel), for respondent Honorable Patricia M. Dimango.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Hilda Mortensen of counsel), respondent pro se.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, LEO F. McGINITY, HOWARD MILLER, STEPHEN G. CRANE, JJ.
ORDERED that the application is granted to the extent that the filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied as academic; 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). The petitioner has failed to demonstrate a clear legal right to the relief sought (see, Matter of Lumpkins v. Griffin, 286 A.D.2d 334 [2d Dept., Aug. 6, 2001]; Matter of Nanton v. Grosso, 286 A.D.2d 335 [2d Dept., Aug. 6, 2001]).
ALTMAN, J.P., S. MILLER, McGINITY, H. MILLER and CRANE, JJ., concur.