Matter of Johnson v Velasquez, 2017 NY Slip Op 05821 [152 AD3d 771]

July 26, 2017

Appellate Division, Second Department

[*1]

In the Matter of Johnathan Johnson, Petitioner,

v

Carmen R. Velasquez, Respondent.

Johnathan Johnson, Malone, NY, petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Michael J. Siudzinski of counsel), for respondent.

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondent, Carmen R. Velasquez, a Justice of the Supreme Court, Queens County, from staying an action entitled Johnson v R & G Gen. Constr. Co. , pending in that court under index No. 20061/12, and application by the petitioner for poor person relief.

Ordered that the application for poor person relief is granted to the extent that the filing fee imposed by CPLR 8022 (b) is waived, and the application is otherwise denied; 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 NY2d 564, 569 [1988]; see Matter of Rush v Mordue , 68 NY2d 348, 352 [1986]). The petitioner has failed to demonstrate a clear legal right to the relief sought. Eng, P.J., Roman, LaSalle and Connolly, JJ., concur..