Jones v. Nelson ( 1994 )

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to preclude the petitioner’s prosecution under Rockland County Indictment No. 93/296.

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

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 here has failed to demonstrate a clear legal right to the relief sought. Further, the extraordinary remedy of prohibition is never available where there exists "an adequate remedy, by way of appeal or otherwise” (Matter of Molea v Marasco, 64 NY2d 718, 720; see, Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993). Thompson, J. P., Rosenblatt, Miller and Ritter, JJ., concur.