IN RE: Scott D. McNAMARA (2007)

Petitioner commenced this original proceeding pursuant to CPLR 7804(b) seeking a judgment in the nature of prohibition.   By his petition, petitioner seeks to vacate a second amended modified order, dated April 18, 2007, appointing a special district attorney to prosecute respondent Gerald R. Dion, Jr.   It is well settled that “the validity of an appointment under section 701 of the County Law may be tested in a prohibition proceeding” (Matter of Wilcox v. Dwyer, 73 A.D.2d 1016, 1017, 423 N.Y.S.2d 964;  see Matter of Board of Supervisors of Montgomery County v. Aulisi, 62 A.D.2d 644, 646-647, 406 N.Y.S.2d 570, affd. 46 N.Y.2d 731, 413 N.Y.S.2d 374, 385 N.E.2d 1302;  see generally Matter of Holtzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297;  Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 51-52, 467 N.Y.S.2d 182, 454 N.E.2d 522).   We conclude, however, that petitioner failed to establish that respondent Supreme Court Justice proceeded in the absence or in excess of his jurisdiction pursuant to County Law § 701, and petitioner failed to establish that he has a clear legal right to the relief requested (cf. Matter of Cloke v. Pulver, 243 A.D.2d 185, 189-190, 675 N.Y.S.2d 650;  Matter of Relin v. Celli, 134 A.D.2d 960, 522 N.Y.S.2d 86;  see generally Schumer, 60 N.Y.2d at 51, 467 N.Y.S.2d 182, 454 N.E.2d 522).

It is hereby ORDERED that the petition be and the same hereby is unanimously dismissed without costs.

MEMORANDUM: