In the Matter of Arthur Francis, Petitioner, v. Warden et al., Respondents

In the Matter of Arthur Francis, Petitioner, v Warden et al., Respondents. [630 NYS2d 942] [MAJORITY] —Proceeding pursuant to CPLR article 78 in the nature of prohibition and mandamus, inter alia, to prohibit the prosecution of Arthur Francis under Queens County Indictment No. 4412/94. 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). Similarly, the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only when there exists a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16). The petitioner here has failed to demonstrate a clear legal right to the relief sought. Mangano, P. J., Thompson, Hart and Friedmann, JJ., concur.