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November 07, 2022

The modern equivalent of a Writ of Mandamus and a Writ of Prohibition preserved in New York State's CPLR

There are a number of ancient common law writs that have been preserved in New York State's Civil Practice Law and Rules. In this action brought pursuant to Article 78 of New York State's Civil Practice Law and Rules, the Appellate Division considered the equivalent of two such ancient writs being sought by the Petitioner, a Writ of Mandamus and a Writ of Prohibition.

With respect to the Writ of Mandamus the court said that "The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought", citing Matter of Legal Aid Society of Sullivan County v Scheinman, 53 NY2d 12.

Addressing the Petitioner's efforts to obtain a Writ of Prohibition, the Appellate Division noted that "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", citing Holtzman v Goldman, 71 NY2d 564.

As to the Petitioner's seeking either or both of these writs, the Appellate Division concluded that "The [Petitioner] has failed to demonstrate a clear legal right to the relief sought" Accordingly, the Appellate Division  dismissed the proceeding "on the merits." 

Other ancients writs that are from time to time sought in the course of litigation include the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. As noted earlier, New York State's Civil Practice Law and Rules sets out the modern equivalents of such surviving ancient writs. 

Click the URL below to access the Appellate Division's decision.

https://www.nycourts.gov/reporter/3dseries/2022/2022_06011.htm


 

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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