Rostkowski v. Baginski

Jun 27, 2012
Versions:96 A.D.3d 1066
946 N.Y.S.2d 886

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit John G. Ingram, a Justice of the Supreme Court, Kings County, from enforcing an order dated March 6, 2012, in a criminal action entitled People v Martynov, pending in the Supreme Court, Kings County, under indictment No. 199/10, which disqualified the petitioner‘s attorney as defense counsel in that action.

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 extraordinary remedy of a writ of prohibition does not lie to seek collateral review of the issue of disqualification of the petitioner‘s attorney (see Matter of Lipari v Owens, 70 NY2d 731, 733 [1987]; Matter of Murray v Hudson, 43 AD3d 936 [2007]). Skelos, J.P., Dickerson, Roman and Miller, JJ., concur.