You are here: / / Criteria for Prohibition Explained
, ,

Criteria for Prohibition Explained

In determining that prohibition did not lie to challenge the appointment of a special district attorney to investigate election law issues, the Second Department explained:

” [A]n article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law'” (Matter of Soares v Herrick, 20 NY3d 139, 145, quoting Matter of Schumer v Holtzman, 60 NY2d 46, 51). Rather, “the extraordinary remedy of prohibition may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi-judicial capacity without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding of which it has jurisdiction” … . Even where prohibition is an available remedy, it ” is not mandatory, but may issue in the sound discretion of the court'” … . ” In exercising this discretion, various factors are to be considered, such as the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist'” … .

Prohibition is an available remedy to void the improper appointment of a Special District Attorney pursuant to County Law § 701 when the Special District Attorney is performing the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice … . However, it is not an available remedy when the Special District Attorney is performing the purely investigative function of investigating “suspicious circumstances” with a view toward determining whether a crime has been committed, since, in such circumstances, his or her acts are to be regarded as executive in nature … . Here, the WFP failed to establish that Special District Attorney Adler was performing a quasi-judicial act. Accordingly, prohibition does not lie.  Matter of Working Families Party v Fisher, 2013 NY slip Op 05578, 2nd Dept 8-7-13

 

You might also like
DESIGNATING PETITION SHOULD HAVE BEEN VALIDATED, SUPREME COURT SHOULD NOT HAVE INVALIDATED TWO SIGNATURES BECAUSE THE CANDIDATE WAS NOT GIVEN THE OPPORTUNITY TO RESPOND TO THE ALLEGATION, MADE DURING CROSS-EXAMINATION AT A HEARING, THAT THE TWO SIGNATURES WERE INVALID (SECOND DEPT).
FALLING SHEETROCK DID NOT SUPPORT A LABOR LAW 240(1) CAUSE OF ACTION.
AWARDING FATHER SOLE LEGAL CUSTODY DID NOT HAVE A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, MOTHER’S PETITION FOR SOLE LEGAL CUSTODY SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE REACH OF LIABILITY UNDER LABOR LAW 241 (6) AND THE MEANING OF “OWNER” AS USED IN THAT STATUTE EXPLAINED (SECOND DEPT).
BECAUSE THE TRIAL JUDGE OMITTED A PORTION OF THE BURGLARY JURY INSTRUCTIONS AND THE PEOPLE DID NOT OBJECT, THE PEOPLE ARE HELD TO THE PROOF REQUIRED BY THE INCOMPLETE INSTRUCTIONS; THE BURGLARY CONVICTION WAS THEREFORE AGAINST THE WEIGHT OF THE EVIDENCE; DEFENSE COUNSEL’S FAILURE TO MAKE A SPEEDY TRIAL MOTION DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE BECAUSE THE ISSUE WAS NOT CLEAR-CUT AND DISPOSITIVE (SECOND DEPT).
No Notice of Defect Needed Where Municipality Affirmatively Created It.
ALTHOUGH DEFENDANT NEVER ANSWERED THE COMPLAINT, HE APPEARED BY MAKING A MOTION TO DISMISS AND PARTICIPATED IN THE LITIGATION, THEREFORE DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD HAVE BEEN GRANTED; DISMISSAL OF THE ACTION FOR FAILURE TO INCLUDE A NECESSARY PARTY OR THE FAILURE TO JOIN OR SUBSTITUTE A PARTY WAS NOT WARRANTED (SECOND DEPT).
RELIGIOUS LIFESTYLE RESTRICTIONS PLACED UPON MOTHER VIOLATED HER CONSTITUTIONAL RIGHTS, FATHER’S DESIRE TO RAISE AND EDUCATE THE CHILDREN IN THE HASIDIC TRADITION WAS IN THE CHILDREN’S BEST INTERESTS (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

No Article 78 Review Where Petitioner Defaulted Automobile Policy Does Not Cover Injury to Passerby Bitten by a Dog Which Was...