70 A.D.2d 548 | N.Y. App. Div. | 1979
—CPLR article 78 petition to prohibit respondent from sitting as the trier of fact or Judge on remand hearing and for other relief, is unanimously denied; the motion of respondent to dismiss the petition for failure to state a claim, is granted and the petition is dismissed; the motion of proposed intervenor Jose Pollock to intervene in the CPLR article 78 proceeding, is denied, all without costs. Motion by defendant Garcia, joined in by defendant Pollock, for reargument, is unanimously denied, without costs. (Rules of Appellate Division, First Department, 22 NYCRR 600.14 [a].) So much of the application as seeks leave to appeal from the order of April 2, 1979, is referred to Justice Silverman of this court who denied leave. (CPL 450.15; 460.15 subd 1.) This CPLR article 78 proceeding is both procedurally and substantively defective. The attorney for a defendant in a criminal case is not a proper party petitioner, even nominally to bring an article 78 proceeding. (Matter of Klein v Haft, 68 AD2d 872.) As there is no claim of