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Bashian v. Brands

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


February 23, 2010

IN THE MATTER OF GARY E. BASHIAN, PETITIONER,
v.
JAMES . BRANDS, ETC., ET AL., RESPONDENTS.

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent James V. Brands, a Justice of the Supreme Court, Dutchess County, from conducting "any further proceedings that deprive [the] petitioner" of certain rights in an action entitled Rock City Sound, Inc. v Bashian & Farber, LLP, pending under Dutchess County Index No,. 4525/08.

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.

JOSEPH COVELLO, J.P., HOWARD MILLER, THOMAS A. DICKERSON and RANDALL T. ENG, JJ.

DECISION & JUDGMENT

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 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. COVELLO, J.P., MILLER, DICKERSON and ENG, JJ., concur.

20100223

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