McNamara v. Tormey , 839 N.Y.S.2d 386 ( 2007 )

Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b] [1]) to vacate a second amended modified order, dated April 18, 2007, appointing a special district attorney to prosecute respondent Gerald R. Dion, Jr.

It is hereby ordered that the petition be and the same hereby is unanimously dismissed without costs.

Memorandum: Petitioner commenced this original proceeding pursuant to CPLR 7804 (b) seeking a judgment in the nature of prohibition. By his petition, petitioner seeks to vacate a second amended modified order, dated April 18, 2007, appointing a special district attorney to prosecute respondent Gerald R. Dion, Jr. It is well settled that “the validity of an appointment under section 701 of the County Law may be tested in a prohibition proceeding” (Matter of Wilcox v Dwyer, 73 AD2d 1016, 1017 [1980]; see Matter of Board of Supervisors of Montgomery County v Aulisi, 62 AD2d 644, 646-647 [1978], affd 46 NY2d 731 [1978]; see generally Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]; Matter of Schumer v Holtzman, 60 NY2d 46, 51-52 [1983]). We conclude, however, that petitioner failed to establish that respondent Supreme Court Justice proceeded in the absence or in excess of his jurisdiction pursuant to County Law § 701, and petitioner failed to establish that he has a clear legal right to the relief requested (cf. Matter of Cloke v Pulver, 243 AD2d 185, 189-190 [1998]; Matter of Relin v Celli, 134 AD2d 960 [1987]; see generally Schumer, 60 NY2d at 51). Present— Hurlbutt, J.E, Peradotto, Green and Pine, JJ.