IN RE: Marc DESIR (2024)

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78, inter alia, in effect, in the nature of prohibition to prohibit the respondent, Robert F. Quinlan, a Justice of the Supreme Court, Suffolk County, from acting in excess of his authority in an action entitled U.S. Bank National Association v Desir, pending in the Supreme Court, Suffolk County, under Index No. 617967/18, and from presiding over that action, and in the nature of mandamus to compel the respondent, Robert F. Quinlan, to vacate a judgment of foreclosure of sale entered in that action and to dismiss the complaint in that action.

ADJUDGED that the petition is 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, 528 N.Y.S.2d 21, 523 N.E.2d 297;  see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352, 509 N.Y.S.2d 493, 502 N.E.2d 170).  The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542).  The petitioner has failed to demonstrate a clear legal right to the relief sought.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

IANNACCI, J.P., GENOVESI, WAN and LANDICINO, JJ., concur.