Matter of Bashian v Brands

Matter of Bashian v Brands 2010 NY Slip Op 01644 [70 AD3d 1037] February 23, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 31, 2010

In the Matter of Gary E. Bashian, Petitioner,
v
James V. Brands et al., Respondents.

—[*1] White Fleischner & Fino, LLP, New York, N.Y. (Gil M. Coogler of counsel), for petitioner.

Andrew M. Cuomo, Attorney General, New York, N.Y. (Susan Anspach of counsel), for respondent James V. Brands.

Benowich Law, LLP, White Plains, N.Y. (Leonard Benowich of counsel), for respondent Rock City Sound, Inc.

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent James V. Brands, a Justice of the Supreme Court, Dutchess County, from conducting "any further proceedings that deprive [the] petitioner" of certain rights in an action entitled Rock City Sound, Inc. v Bashian & Farber, LLP, pending under Dutchess County index No. 4525/08.

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. Covello, J.P., Miller, Dickerson and Eng, JJ., concur.