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Solheim v. Weber

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 15, 2009

IN THE MATTER OF THOMAS SOLHEIM, PETITIONER,
v.
GARY J. WEBER, ETC., ET AL., RESPONDENTS.

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from enforcing an order of the respondent Gary J. Weber, a Judge of the County Court, Suffolk County, dated July 7, 2009, which granted the motion of the respondent Thomas J. Spota, District Attorney of Suffolk County, to compel the petitioner to provide a buccal swab sample for DNA analysis in connection with a homicide investigation.

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.

REINALDO E. RIVERA, J.P., STEVEN W. FISHER, ARIEL E. BELEN and LEONARD B. AUSTIN, JJ.

DECISION & JUDGMENT

ADJUDGED that the petition is denied, the proceeding is dismissed on the merits, without costs or disbursements, and the temporary stay contained in the order to show cause dated August 5, 2009, is vacated forthwith.

"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 has failed to demonstrate a clear legal right to the relief sought (see Matter of Thompson v Griffin, 58 AD3d 637; Weissman v Lange, 4 AD3d 478; see also Matter of Traynor v Rosato, 275 AD2d 326).

RIVERA, J.P., FISHER, BELEN and AUSTIN, JJ., concur.

20091215

© 1992-2009 VersusLaw Inc.



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