Matter of Mark I. Eromosele v Robert A. Ross

Matter of Eromosele v Ross 2006 NY Slip Op 00356 [25 AD3d 610] January 17, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 22, 2006

In the Matter of Mark I. Eromosele, Petitioner,
v
Robert A. Ross, as Justice of the Supreme Court of the State of New York, Respondent.

—[*1]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 presiding at the trial of an action entitled Eromosele v Eromosele, commenced in that court, 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, 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 has failed to demonstrate a clear legal right to the relief sought. Goldstein, J.P., Mastro, Spolzino and Lunn, JJ., concur.