Matter of Weiner v Spinner, 2015 NY Slip Op 06922 [131 AD3d 1175]

September 23, 2015

Appellate Division, Second Department

[*1]

In the Matter of Don Weiner, Petitioner,

v

Jeffrey Arlen Spinner, Acting Justice of the Supreme Court, Suffolk County, et al., Respondents.

Don Weiner, Smithtown, N.Y., petitioner pro se.

Eric T. Schneiderman, Attorney General, New York, N.Y. (Jonathan D. Conley of counsel), for respondent Jeffrey Arlen Spinner.

Maryann Weiner, Dix Hills, N.Y., respondent pro se.

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit Jeffrey Arlen Spinner, an Acting Justice of the Supreme Court, Suffolk County, from enforcing his order dated March 11, 2015, directing certain family offense proceedings commenced in the Family Court, Suffolk County, to be transferred to the Supreme Court, Suffolk County, and consolidated with a matrimonial action pending in that court.

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 establish a clear legal right to relief in the nature of prohibition. Eng, P.J., Dickerson, Sgroi and Hinds-Radix, JJ., concur..