

Matter of Smith v Knipel (2017 NY Slip Op 05227)





Matter of Smith v Knipel


2017 NY Slip Op 05227


Decided on June 28, 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 June 28, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
SANDRA L. SGROI
JEFFREY A. COHEN
COLLEEN D. DUFFY, JJ.


2017-03692	DECISION, ORDER & JUDGMENT

[*1]In the Matter of Russell Smith, et al., petitioners, 
vLawrence Knipel, etc., et al., respondents.


Marisa Falero, Brooklyn, NY, for petitioners.
Eric T. Schneiderman, New York, NY (Angel M. Guardiola II of counsel), for respondent Lawrence Knipel.
Hahn & Hessen, LLP, New York, NY (Zachary G. Newman and Stephen J. Grable of counsel), for respondent JPMorgan Chase Bank, N.A.

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Lawrence Knipel, a Justice of the Supreme Court, Kings County, from enforcing an order dated March 27, 2017, in a proceeding entitled Matter of J.P. Morgan Chase Bank, N.A., v Willnus,  pending in the Supreme Court, Kings County, under Index No. 27940/08. Motion by the respondent Lawrence Knipel to dismiss the petition on the ground, among others, that it is without merit, and separate motion by the respondent JPMorgan Chase Bank, N.A., to dismiss the petition on the ground, inter alia, that it is without merit, and for the imposition of sanctions.
Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is
ORDERED that the motions are denied; and it is further,
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; see Matter of Rush v Mordue , 68 NY2d 348, 352).
The petitioners have failed to establish a clear legal right to the relief sought.
BALKIN, J.P., SGROI, COHEN and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


