IN RE: Menachem Gutman

ResetAA Font size: Print

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Menachem Gutman, et al., petitioners/counterclaim defendants, v. David I. Schmidt, et al., respondents, Zalman Klein, respondent/counterclaim plaintiff;  Victor A. Worms, additional counterclaim defendant.

2014–03042

Decided: May 28, 2014

RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS JEFFREY A. COHEN COLLEEN D. DUFFY, JJ. Victor A. Worms, New York, N.Y., additional counterclaim defendant pro se, and for petitioners/counterclaim defendants. Eric T. Schneiderman, New York, N.Y. (Susan Anspach of counsel), for respondents. Savad Churgin, Nanuet, N.Y. (Joseph A. Churgin of counsel), for respondent/counterclaim plaintiff.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the appointment of a temporary receiver in an action entitled Klein v. Gutman, pending in the Supreme Court, Kings County, under Index No. 47485/01, and counterclaims by the respondent Zalman Klein, inter alia, for an award of counsel fees and the imposition of sanctions pursuant to 22 NYCRR 130–1.1.

ADJUDGED that the petition and the counterclaims are denied and the proceeding is dismissed on the merits, 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 N.Y.2d 564, 569;  see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352).   The petitioner failed to establish a clear legal right to relief in the nature of prohibition.

The counterclaims by the respondent Zalman Klein, inter alia, for an award of counsel fees and the imposition of sanctions pursuant to 22 NYCRR 130–1.1 are denied.

BALKIN, J.P., CHAMBERS, COHEN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More