Fontaine v. Kohm (259 A.D.2d 701, 1999)

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from continuing the prosecution of a criminal action entitled People v Fontaine, presently pending in the Supreme Court, Queens County, under Indictment No. 2798/95, and application to prosecute the proceeding as a poor person.

Ordered that the application is granted and the petitioner may prosecute the proceeding as a poor person; and it is further,

Adjudged that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.

“Because cf 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. O’Brien, J. P., Ritter, Thompson and Gold-stein, JJ., concur.