

Matter of Raiser & Kenniff, P.C. v Nassau County Sheriff's Dept. (2017 NY Slip Op 03183)





Matter of Raiser & Kenniff, P.C. v Nassau County Sheriff's Dept.


2017 NY Slip Op 03183


Decided on April 26, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 26, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

SHERI S. ROMAN, J.P.
JEFFREY A. COHEN
HECTOR D. LASALLE
BETSY BARROS, JJ.


2015-06868
 (Index No. 10102/14)

[*1]In the Matter of Raiser & Kenniff, P.C., et al., appellants, 
vNassau County Sheriff's Department, et al., respondents.


Raiser & Kenniff, P.C., Mineola, NY (Steven M. Raiser of counsel), appellant pro se and for appellants Brandon Swopes, David Brimmer, and Javon Zachary.
Carnell T. Foskey, County Attorney, Mineola, NY (Robert F. Van Der Waag and Nicholas Vevante of counsel), for respondents Nassau County Sheriff's Department and Michael J. Sposato, in his official capacity as the Sheriff of Nassau County.
Madeline Singas, District Attorney, Mineola, NY (Tammy J. Smiley and Laurie K. Gibbons of counsel), respondent pro se and for respondent Nassau County District Attorney's Office.

DECISION & ORDER
In a proceeding, inter alia, pursuant to CPLR article 78 in the nature of prohibition to prohibit the Nassau County District Attorney's Office from ordering recordings of conversations of inmates housed at the Nassau County Correctional Facility without a subpoena issued upon notice to defense counsel, and mandamus to compel the Nassau County Sheriff's Department and Michael J. Sposato, the Sheriff of Nassau County, to deliver such recordings only after receiving a properly issued subpoena and sending the recordings and a list of all calls made by inmates to a court or grand jury for review, the petitioners appeal from a judgment of the Supreme Court, Nassau County (Bruno, J.), dated March 30, 2015, which denied the petition and, in effect, dismissed the proceeding.
ORDERED that the judgment is affirmed, without costs or disbursements.
" [A] petitioner seeking a writ of prohibition must demonstrate that: (1) a body or officer is acting in a judicial or quasi-judicial capacity, (2) that body or officer is proceeding or threatening to proceed in excess of its jurisdiction and (3) petitioner has a clear legal right to the relief requested'" (Matter of Rachelle v Rice, 112 AD3d 942, 942, quoting Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358, 361-362). "The remedy is confined to judicial or quasi-judicial action rather than to legislative, executive, administrative, or ministerial acts" (Matter of Doe v Cuomo, 71 AD3d 889, 889). Here, the petitioners failed to demonstrate that the conduct sought to be prohibited pertained solely to quasi-judicial action, as opposed to an investigative function performed in an executive capacity; thus, prohibition does not lie under the circumstances (see Matter of McGinley v Hynes, 51 NY2d 116, 123-124; Matter of Doe v Cuomo, 71 AD3d 889).
Further, "[t]he extraordinary remedy of mandamus will lie only to compel the [*2]performance of a ministerial act, and only where there exists a clear legal right to the relief sought" (Matter of Sullivan v Morgenstern, 127 AD3d 980, 980). Under the circumstances of this case, the petitioners failed to demonstrate a clear legal right to the relief sought.
In light of our determination, we need not reach the parties' remaining contentions.
Accordingly, the Supreme Court properly denied the petition and, in effect, dismissed the proceeding.
ROMAN, J.P., COHEN, LASALLE and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


