Matter of Garcia v Tomei

Matter of Garcia v Tomei 2010 NY Slip Op 08108 [78 AD3d 834] November 9, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

In the Matter of David Garcia, Petitioner,
v
Albert Tomei, Respondent.

—[*1] David Garcia, Fallsburg, N.Y., petitioner pro se.

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

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondent Albert Tomei, a Justice of the Supreme Court, Kings County, from (1) deciding a pending petition for a writ of habeas corpus, and (2) performing or taking any action with respect to the petitioner, and application by the petitioner to prosecute the petition as a poor person.

Ordered that the application to prosecute the petition as a poor person is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied as academic; and it is further,

Adjudged that the branch of the petition which is to prohibit the respondent Albert Tomei from deciding a pending petition for a writ of habeas corpus is denied as academic, without costs or disbursements, on the ground that the petition for a writ of habeas corpus was decided by order dated June 26, 2010; and it is further,

Adjudged that the petition is otherwise 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. Skelos, J.P., Dickerson, Eng and Lott, JJ., concur.