Cunningham v. Appelman

Proceeding pursuant to CPLR article 78 in the nature of prohibí*575tion, inter alia, to enjoin the respondents from proceeding to trial against the petitioner under Queens County Indictment No. 3030/96, and application for poor person relief.

Motion by the respondent Justice of the Supreme Court to dismiss the proceeding.

Upon the petition and papers filed in support of the proceeding, and the papers filed in opposition thereto and in support of the motion, it is

Ordered that the application for poor person relief is granted; 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 NY2d 564, 569; see, Matter of Rush v Mordue, 68 NY2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought. Miller, J. P., Copertino, Sullivan and Altman, JJ., concur.