Opinion
Submitted June 20, 2001.
August 6, 2001.
Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from proceeding in an action entitled People v. Lumpkins, pending in the Supreme Court, Queens County, under Indictment No. 1454/2000, and application for leave to prosecute the proceeding as a poor person.
Todd Lumpkins, East Elmhurst, N.Y., petitioner pro se.
Eliot Spitzer, Attorney-General, New York, N.Y. (Carolyn Cairns Olson of counsel), for respondent Justice.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, James A. Dolan, and James L. Iannone of counsel), respondent pro se.
Before: CORNELIUS J. O'BRIEN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
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 as academic; and it is further,
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 N.Y.2d 564, 569; see, Matter of Rush v. Mordue, 68 N.Y.2d 348, 352). The petitioner has failed to demonstrate a clear legal right to the relief sought.
O'BRIEN, J.P., KRAUSMAN, GOLDSTEIN, SCHMIDT and CRANE, JJ., concur.