IN RE: Henry Rubio (2010)

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78, inter alia, to prohibit the respondent Timothy Flaherty, a Justice of the Supreme Court, Queens County, from allowing the subject child to return to the State of North Carolina.

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;  see Matter of Rush v. Mordue, 68 N.Y.2d 348, 352).   The petitioner has failed to demonstrate a clear legal right to the relief sought.

DILLON, J.P., SANTUCCI, BALKIN and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court