Matter of Smith v. Lasak , 149 A.D.3d 845 ( 2017 )

Matter of Smith v Lasak (2017 NY Slip Op 02797)

Matter of Smith v Lasak

2017 NY Slip Op 02797

Decided on April 12, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 12, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
CHERYL E. CHAMBERS
COLLEEN D. DUFFY
BETSY BARROS, JJ.

2016-12333

[*1]In the Matter of Kevin P. Smith, petitioner,

v

Gregory Lasak, etc., et al., respondents.

Kevin P. Smith, East Elmhurst, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Charles F. Sanders of counsel), for respondent Gregory Lasak.

Richard A. Brown, District Attorney, Kew Gardens, NY (Danielle M. Boyle of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondents from proceeding with an underlying criminal prosecution entitled People v Smith , pending in the Supreme Court, Queens County, under Indictment No. 439/15, and in the nature of mandamus to compel the respondents to dismiss the indictment, and application by the petitioner for poor person relief.

ORDERED that the application for poor person relief is granted to the extent that the

filing fee imposed by CPLR 8022(b) is waived, and the application is otherwise denied; and it is further,

ADJUDGED that the petition is denied and the proceeding is dismissed on the merits,

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 extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy . of Sullivan County v Scheinman , 53 NY2d 12, 16).

The petitioner failed to demonstrate a clear legal right to the relief sought.

RIVERA, J.P., CHAMBERS, DUFFY and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court