Matter of Raquette Realty, LLC v Bayne

Matter of Raquette Realty, LLC v Bayne 2016 NY Slip Op 08527 Decided on December 21, 2016 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 21, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
L. PRISCILLA HALL
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.
2016-10906

[*1]In the Matter of Raquette Realty, LLC, petitioner,

v

Bernadette Bayne, etc., et al., respondents.

Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, Lake Success, NY (Anthony J. Genovesi of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, NY (Michael J. Siudzinski of counsel), for respondent Bernadette Bayne.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of mandamus and prohibition, inter alia, to compel Bernadette Bayne, a Justice of the Supreme Court, Kings County, to enter two orders in an underlying action entitled Patterson v Raquette Realty, LLC , pending under Kings County Index No. 508154/14, and to prohibit that Justice from vacating those orders.

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

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). "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 petitioner failed to demonstrate a clear legal right to the relief sought.

DILLON, J.P., HALL, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court