| Matter of Dixon v Nicolai |
| 2006 NY Slip Op 07877 [33 AD3d 999] |
| October 31, 2006 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Stanley Dixon, Petitioner, v Francis A. Nicolai, as Justice of the Supreme Court of the State of New York, et al., Respondents. |
—[*1]Proceeding pursuant to CPLR article 78 in the nature of prohibition to enjoin the respondent Francis A. Nicolai, a Justice of the Supreme Court, Westchester County, from enforcing an order of that court dated June 15, 2005, in a criminal action entitled People v Dixon, pending in that court under indictment No. 02-01353. Motion by the Westchester County District Attorney to dismiss the proceeding.
Ordered that the motion is granted; 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 NY2d 564, 569 [1988]; see Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Crane, J.P., Spolzino, Fisher and Dillon, JJ., concur.