Opinion
October 23, 1961
In this article 78 proceeding, on March 18, 1960 we granted respondent's motion to dismiss the petition as a matter of law ( 10 A.D.2d 873). On March 30, 1961, the Court of Appeals reversed our order and remitted the matter to us for proceedings consistent with its majority opinion ( 9 N.Y.2d 376). Thereafter, without court leave, and without any action on the Court of Appeals' remittitur by either of the parties or by us, petitioner filed in this court an amended petition, verified August 18, 1961. This amended petition contains a second or new cause of action, in which: (a) petitioner asserts that respondent, in violation of the Canons of Judicial Ethics, defamed petitioner and its members through the medium of his published judicial opinions incident to his refusal to approve petitioner's proposed certificate of incorporation ( 17 Misc.2d 1012; 18 Misc.2d 534); and in which (b) petitioner asks, in effect, that this court take appropriate disciplinary action against respondent by reason of the alleged defamatory statements in his said opinions. Since the filing of this amended petition does not prejudice any substantial right of the respondent, the court disregards petitioner's irregularity in filing it without prior leave and deems it to be filed (Civ. Prac. Act, §§ 105, 244, 1306). In view of the filing of such amended petition, however, this court presently cannot take any action on the Court of Appeals' remittitur, for the remittitur is based on the original petition which has now been superseded by the amended petition. It would also appear that respondent, who has since been elected to the office of County Judge of Queens County, is now functus officio as a Supreme Court Justice. Accordingly, respondent is directed, within 30 days after entry of the order hereon, either to file and serve his answer to the amended petition, in accordance with section 1291 of the Civil Practice Act, or to make such motion addressed to the amended petition as he deems appropriate under section 1293 of the Civil Practice Act. Pending such answer or motion, action on the remittitur must necessarily be held in abeyance. Nolan, P.J., Beldock, Ughetta, Christ and Pette, JJ., concur.