Matter of Nassau County Socy. for Prevention of Cruelty to Animals v County of Nassau, 2017 NY Slip Op 00983 [147 AD3d 849]

February 8, 2017

Appellate Division, Second Department

[*1]

In the Matter of Nassau County Society for Prevention of Cruelty to Animals, Petitioner,

v

County of Nassau et al., Respondents.

Constants Law Offices, LLC, Locust Valley, NY (Alfred C. Constants III of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, New York, NY (Michelle R. Lambert of counsel), for respondent County of Nassau.

Kristen A. Clodfelter, Garden City, NY, for respondent Christopher Moore.

Proceeding pursuant to CPLR article 78, inter alia, in effect, in the nature of prohibition to prohibit a justice of the Supreme Court, Nassau County, from determining an order to show cause returnable November 4, 2016, in an action entitled Moore v Nassau County Socy. for Prevention of Cruelty to Animals , pending under Nassau County index No. 7024/16.

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., Balkin, Leventhal and LaSalle, JJ., concur..