Opinion
2002-09853
December 30, 2002.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the use of blood samples obtained in a pending criminal action and application for poor person relief.
Richard Morgan, Sloatsburg, N.Y., petitioner pro se.
Eliot Spitzer, Attorney-General, New York, N.Y. (David B. Cohen of counsel), for respondent (no brief filed).
Michael E. Bongiorno, District Attorney, New City, N.Y. (William T. McClarnon of counsel), nonparty-respondent pro se.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, THOMAS A. ADAMS, WILLIAM F. MASTRO, JJ.
DECISION, ORDER JUDGMENT
Motion by the nonparty-respondent Office of the District Attorney of Rockland County to dismiss the proceeding.
ORDERED that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8002(b) is waived and the application is otherwise denied as academic; and it is further,
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). The petitioner has failed to demonstrate a clear legal right to the relief sought.
ALTMAN, J.P., S. MILLER, ADAMS and MASTRO, JJ., concur.