Ellman v. Nastasi ( 1992 )

Proceedings pursuant to CPLR article 78 in the nature of prohibition (1) to bar the respondents from maintaining custody of the petitioner, or otherwise commencing or continuing any proceedings against him in the nature of criminal contempt, and (2) to bar the respondents from issuing or enforcing any order modifying the judgment or sentence issued to the petitioner for civil contempt, or affecting the good time credit issued to the petitioner.

Adjudged that the petitions are denied and the proceedings are 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; Matter of Crain Communications v Hughes, 74 NY2d 626, 627-628). The petitioner here has failed to demonstrate a clear legal right to the relief requested which could not be otherwise safeguarded through alternative remedies (see, Matter of Lipari v Owens, 70 NY2d 731; Matter of Rush v Mordue, 68 NY2d 348, 353). Thus, the proceedings are dismissed. Thompson, J. P., Bracken, Sullivan and Ritter, JJ., concur.