Matter of Michael Sharp v Neil R. Cahn

Matter of Sharp v Cahn 2006 NY Slip Op 04848 [30 AD3d 528] Decided on June 13, 2006 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 June 13, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
A. GAIL PRUDENTI, P.J.
ANITA R. FLORIO
GABRIEL M. KRAUSMAN
WILLIAM F. MASTRO, JJ.
2006-02803 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Michael Sharp, petitioner,

v

Neil R. Cahn, etc., et al., respondents.




Michael Sharp, Huntington Station, N.Y., petitioner pro se.
Newman & Cahn, LLP, Carle Place, N.Y. (Neil R. Cahn pro
se of counsel), respondent pro se.
Eliot Spitzer, Attorney-General, New York, N.Y.
(Constantine A. Speres of counsel), for
New York State respondents.
Proceeding pursuant to CPLR article 78 in the nature of
prohibition and mandamus, inter alia, to prohibit certain Justices of the
Supreme Court, Suffolk County, and certain attorneys from
taking part in the actions entitled Sharp v Sharp pending in that
court under Index No. 27393/99 and Newman & Cahn, LLP v
Sharp, pending in that court under Index No. 24209/03.

Motion by the New York State respondents, joined in by the other respondents, to dismiss the proceeding.

ORDERED that the motion is granted; and it is further,

ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The petition, insofar as asserted against the petitioner's former attorneys Neil R. Cahn and Newman & Cahn, LLP, must be denied (see CPLR 7802).

With regard to the other respondents, "[b]ecause 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 [*2]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). Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought (see Matter of Legal Aid Society of Sullivan County v Scheinman, 53 NY2d 12, 16). The petitioner here has failed to demonstrate a clear legal right to the relief sought.
PRUDENTI, P.J., FLORIO, KRAUSMAN and MASTRO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court