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Matter of McCormick v. Grosso

Appellate Division of the Supreme Court of New York, Second Department
Oct 22, 2001
287 A.D.2d 635 (N.Y. App. Div. 2001)

Opinion

October 22, 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. Kevin McCormick, pending in the Supreme Court, Queens County, under Indictment No. 11130/00, and application by the petitioner to prosecute the proceeding as a poor person.

Kevin McCormick, East Elmhurst, N.Y., petitioner pro se.

Eliot Spitzer, Attorney-General, New York, N.Y. (Carolyn Cairn Olson of counsel), for respondent Honorable Joseph Grosso.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Nadja Schulz of counsel), respondent pro se.

Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, LEO F. McGINITY, HOWARD MILLER, STEPHEN G. CRANE, JJ.


ORDERED that the application 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 (see, Matter of Lumpkins v. Griffin, 286 A.D.2d 334 [2d Dept., Aug. 6, 2001]; Matter of Nanton v. Grosso, 286 A.D.2d 335 [2d Dept., Aug. 6, 2001]).

ALTMAN, J.P., S. MILLER, McGINITY, H. MILLER and CRANE, JJ., concur.


Summaries of

Matter of McCormick v. Grosso

Appellate Division of the Supreme Court of New York, Second Department
Oct 22, 2001
287 A.D.2d 635 (N.Y. App. Div. 2001)
Case details for

Matter of McCormick v. Grosso

Case Details

Full title:IN THE MATTER OF KEVIN McCORMICK, petitioner, v. JOSEPH GROSSO, ETC., ET…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 22, 2001

Citations

287 A.D.2d 635 (N.Y. App. Div. 2001)
731 N.Y.S.2d 894

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