Opinion
October 27, 1997
Ordered that the petitioner is directed to show cause before this Court, in the form of an affidavit, on the issue of the imposition of appropriate costs or sanctions, if any, pursuant to 22 NYCRR 130-1.1 to be imposed on him for his conduct in pursuing a frivolous proceeding; the petitioner shall serve and file his affidavit on or before November 28, 1997; and it is further,
Ordered that the clerk of this Court shall serve a copy of this decision, order, and judgment on the petitioner.
"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.
Furthermore, by decision and order dated April 28, 1997, this Court affirmed an order of the Supreme Court, Suffolk County, dated August 24, 1995, which denied the appellant's motion to vacate the judgment which is the subject of the instant proceeding ( see, Enright v. Vasile, 238 A.D.2d 543). Accordingly, the petitioner is directed to file an affidavit upon the issue of why sanctions should not be imposed on him pursuant to 22 NYCRR 130-1.1.
Miller, J.P., Thompson, Joy and Luciano, JJ., concur.