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

IN RE: Peter BROWN, et al., petitioners, v. Robert C. McGANN, etc., et al., respondents.

Decided: March 29, 1999

FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ. Peter Brown and Thomas Brown, Jamaica, N.Y., petitioners pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Jeanne W. Weisneck of counsel), respondent pro se, and for respondent Robert C. McGann.

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from retrying the petitioners under Queens County Indictment No. N10884/97.

ORDERED that, on the court's own motion, the respondents' time to submit an answer to the petition is enlarged nunc pro tunc until March 17, 1999, and the answer submitted on that day is accepted for filing (see, CPLR 2004);  and it is further,

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 petitioners have failed to demonstrate a clear legal right to the relief sought.


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