Moreno v. Cruz, 806 N.Y.S.2d 702

Moreno v. Cruz

806 N.Y.S.2d 702

N.Y. App. Div.

2005

Check Treatment

In the Matter of NANCY JACE et al., Petitioners, v ROBERTA L. DUNLOP, as Justice of the Supreme Court of the State of New York, et al., Respondents.

Appellate Division of the Supreme Court of the State of New York, Second Department

November 28, 2005

805 NYS2d 856

Proceeding pursuant to CPLR article 78 in the nature of prohibition, to prohibit the respondent Roberta L. Dunlop, a Justice of the Supreme Court, from proceeding with the trial of a criminal action entitled People v Jace and Nicholas, pending in the Supreme Court, Queens County, under indictment No. 1509/05, and to prohibit the respondent Richard A. Brown, District Attorney of Queens County, from prosecuting that indictment.

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 [1988]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The petitioners have failed to demonstrate a clear legal right to the relief sought. Prudenti, P.J., Adams, Spolzino and Covello, JJ., concur.