Doria v. Ross ( 2003 )

—Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Robert A. Ross, a Justice of the Supreme Court, Nassau County, from commencing the trial in an underlying action entitled Doria v Doria, pending in the Supreme Court, Nassau County, under Index No. 204377/01. Application by the respondent Joseph Doria for an award of costs and the imposition of a sanction upon the petitioner pursuant to 22 NYCRR 130-1.1.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements; and it is further,

Ordered that the application is denied, 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 petitioner failed to demonstrate a clear legal right to the relief sought. In addition, the petitioner has an adequate legal remedy available (see e.g. Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783 [1993]; Matter of Dondi v Jones, 40 NY2d 8 [1976]).

Under the circumstances of this case, an award of costs and the imposition of a sanction upon the petitioner is not warranted. Altman, J.P., Goldstein, McGinity and H. Miller, JJ., concur.