Tyler v. Forma

Sep 27, 1996
Versions:231 A.D.2d 891
647 N.Y.S.2d 314
1996 N.Y. App. Div. LEXIS 10732

Petition unanimously dismissed without costs. Memorandum: Petitioner appealed from an order of Supreme Court that denied his application for a writ of habeas corpus. Rather than perfecting that appeal, petitioner commenced this original CPLR article 78 proceeding in the nature of prohibition, seeking to prohibit respondent from "accepting and considering any and all affidavits or affirmations and return in opposition to petitioner’s motion for an order of preclusion and default judgments * * * [and] in opposition to petitioner’s writ of habeas corpus”.

A CPLR article 78 proceeding is not the appropriate method to seek review of issues that could be raised on direct appeal, *892and the petition is therefore dismissed (see, Hodge v LoRusso, 181 AD2d 1009; Matter of Sans v Doyle, 175 AD2d 670, 671). Were we to reach the merits, we would conclude that the petition alleges merely an error of law or abuse of discretion that does not constitute the kind of abuse or perversion of a court’s jurisdiction as would warrant the issuance of a writ of prohibition (see, Development Auth. v Sayyeau, 134 AD2d 959, 960, lv denied 71 NY2d 804). (Original Proceeding Pursuant to CPLR art 78.) Present—Lawton, J. P., Wesley, Callahan, Davis and Boehm, JJ.