Matter of Robinson v Spinner

Matter of Robinson v Spinner 2012 NY Slip Op 09070 Decided on December 26, 2012 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 December 26, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
JOHN M. LEVENTHAL
PLUMMER E. LOTT
LEONARD B. AUSTIN, JJ.
2012-09267 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Kenneth Robinson, petitioner,

v

Jeffery Arlen Spinner, etc., et al., respondents. Kenneth Robinson, Dannemora, N.Y., petitioner pro se.




Eric T. Schneiderman, Attorney General, New York, N.Y. (Charles
F. Sanders of counsel), for respondents Jeffrey Arlen Spinner,
named herein as Jeffery Arlen Spinner, and Michael Scardino.
Bryan P. Kujawski, Deer Park, N.Y., respondent pro se.

Proceeding pursuant to CPLR article 78, in the nature of prohibition, to prohibit the respondents from conducting any proceedings in a civil action entitled Gold v Robinson, pending in the Supreme Court, Suffolk County, under Index No. 19126/10, and, in effect, in the nature of mandamus, inter alia, to compel the respondent Jeffery Arlen Spinner, a Justice of the Supreme Court, to dismiss that action, 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.
ANGIOLILLO, J.P., LEVENTHAL, LOTT and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court