Matter of Mitchell v Garnett

Matter of Matter of Mitchell v Garnett 2014 NY Slip Op 04771 Decided on June 25, 2014 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 June 25, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
REINALDO E. RIVERA
PLUMMER E. LOTT
COLLEEN D. DUFFY, JJ.
2014-04669 DECISION, ORDER & JUDGMENT

[*1]In the Matter of Stephen Mitchell, petitioner,

v

William Garnett, etc., et al., respondents.

Stephen Mitchell, Brooklyn, N.Y., petitioner pro se.

John W. McConnell, New York, N.Y. (Pedro Morales of counsel), for respondents.

Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondent William Garnett, an Acting Justice of the Supreme Court, Kings County, from hearing and determining the petitioner's petition for a writ of habeas corpus, pending in the Supreme Court, Kings County, under Index No. 6759/14, 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 petitioner failed to demonstrate a clear legal right to the relief sought.

ENG, P.J., RIVERA, LOTT and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court