Opinion
2003-01123
Submitted April 25, 2003.
June 2, 2003.
Proceeding pursuant to CPLR article 78, inter alia, in effect, to prohibit Duane A. Hart, a Justice of the Supreme Court, Queens County, from enforcing a final order dated February 5, 2003, holding the petitioner, Elaine Burton, in civil contempt, imposing a fine, and, upon default of payment thereof, incarcerating her.
Scott Mason-Kinsey, LLP, Brooklyn, N.Y. (Armani B. Scott of counsel), for petitioner.
Eliot Spitzer, Attorney-General, New York, N.Y. (Charles F. Sanders of counsel), for respondent.
Kerner Kerner, New York, N.Y. (Kenneth T. Kerner of counsel), for nonparties LaQuinta Holley, Jivon Holley, and Akira Holley.
Before: ANITA R. FLORIO, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION JUDGMENT
ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.
The extraordinary remedy of prohibition does not lie where, as here, the final order sought to be reviewed is issued pursuant to Judiciary Law §§ 753(A)(5) and 756, in contrast to Judiciary Law § 755. Although the final order is phrased in terms of a summary adjudication, in actuality, it held the petitioner in civil contempt for her failure to comply with a judicial subpoena duces tecum (cf. Matter of Rush v. Mordue, 68 N.Y.2d 348, 352; La Rocca v. Lane, 37 N.Y.2d 575, 578-579, cert denied 424 U.S. 968; Matter of State of New York v. King, 36 N.Y.2d 59, 62). The remedy is by appeal (see Douglas v. Adel, 269 N.Y. 144, 147; see also Berkowitz v. Astro Moving Stor. Co., 240 A.D.2d 450, 452).
FLORIO, J.P., SCHMIDT, TOWNES and CRANE, JJ., concur.