Matter of Kocot v Greller, 2015 NY Slip Op 09108 [134 AD3d 845]

December 9, 2015

Appellate Division, Second Department

[*1]

In the Matter of Stanley Kocot, Petitioner,

v

Stephen L. Greller et al., Respondents.

Steven K. Patterson, Poughkeepsie, N.Y., for petitioner.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Michelle R. Lambert of counsel), for respondent Stephen L. Greller.

William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel), respondent pro se.

Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondents from retrying the petitioner in a criminal action entitled People v Kocot , pending in the County Court, Dutchess County, under indictment No. 151/14, on the ground that to do so would subject him to double jeopardy.

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 failed to demonstrate a clear legal right to the relief sought. Eng, P.J., Sgroi, Maltese and LaSalle, JJ., concur..