Matter of Troy Sneed v Arthur M. Schack

Matter of Sneed v Schack 2006 NY Slip Op 05972 [31 AD3d 774] July 25, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

In the Matter of Troy Sneed, Petitioner,
v
Arthur M. Schack, Respondent.

—[*1]Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to compel the respondent to grant the petitioner summary judgment in action entitled Alfred Lewis Enters. v Edmundson, pending in the Supreme Court, Kings County, under index No. 15895/05, 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]). 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 Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). [*2]

The petitioner has failed to demonstrate a clear legal right to the relief sought. Crane, J.P., Goldstein, Rivera and Lifson, JJ., concur.