Murphy v. Danaher

Motion granted, and application, pursuant to CPLR article 78, denied and petition dated July 28, 1986 dismissed. The extraordinary remedy of prohibition lies only where petitioner has established a clear right to relief and where action taken or threatened is clearly without jurisdiction or in excess of jurisdiction (see, e.g., Matter of State of New York v King, 36 NY2d 59). Such remedy does not issue as of right, but only in the sound discretion of the court (Matter of Dondi v Jones, 40 NY2d 8, 13). In addition, prohibition is inappropriate even where there has been an excess of jurisdiction if an adequate remedy at law, such as an appeal, is available (Matter of Vest v Simcoe, 61 AD2d 869). Even if it is assumed in the present case that there is personal jurisdiction over all respondents, we are of the opinion that, applying the aforementioned principles, this collateral proceeding does not lie. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.