Article VI, § 19 (b) of the New York State Constitution authorizes the County Court to transfer "any action or proceeding . . . to any court, other than the supreme court, having jurisdiction of the subject matter within the county provided that such other court has jurisdiction over the classes of persons named as parties." ( See Matter of Clute v McGill, 229 AD2d 70 [3d Dept 1997].) One of the exceptions to this rule is "a criminal action or proceeding involving a felony prosecuted by indictment."
Decided June 27, 1997 Appeal from 3d Dept: 229 A.D.2d 70 MOTIONS FOR LEAVE TO APPEAL
As a threshold matter, we agree with the landlord that its motion to transfer was not masquerading as an improper motion to reargue or renew its prior motion to dismiss. Although not labeled as such, the landlord's motion to transfer was plainly a motion under article VI, § 19(b) of the New York Constitution, which provides that, with certain inapplicable exceptions, the "county court may transfer any action or proceeding ... to any court, other than the supreme court, having jurisdiction of the subject matter within the county provided that such other court has jurisdiction over the classes of persons named as parties" (see e.g.Matter of Clute v. McGill, 229 A.D.2d 70, 71–72, 655 N.Y.S.2d 201 [3d Dept. 1997], lv denied 90 N.Y.2d 803, 661 N.Y.S.2d 179, 683 N.E.2d 1053 [1997] ; Spycher v. Andrew, 55 A.D.2d 715, 716, 388 N.Y.S.2d 725 [3d Dept. 1976] ). The landlord's motion to dismiss, in contrast, was made under CPLR 3211(a)(7).
This is not an interlocutory review of an agency's actions but, rather, a review of the Hearing Officer's grant of intervention, which petitioner alleges is beyond the jurisdiction of the Hearing Officer. Upon a proper showing, prohibition may lie from a nonfinal agency action (see Matter of Hamptons Hosp. Med. Ctr. v. Moore, 52 N.Y.2d 88, 96). Fundamentally, the remedy of prohibition is available to prevent an officer from proceeding or threatening to proceed without or in excess of jurisdiction (see Matter of Doe v. Axelrod, 71 N.Y.2d 484, 490; see also Matter of Rush v. Mordue, 68 N.Y.2d 348, 353), and "`will not lie absent a showing of a clear legal right to the relief requested'" (Matter of Clute v. McGill, 229 A.D.2d 70, 71, lv denied 90 N.Y.2d 803, quotingMatter of Adelphi Univ. v. Board of Regents, 229 A.D.2d 36, 38) or that the officer acted in excess of his or her powers in a manner that implicated "the legality of the entire proceeding" (Matter of Rush v. Mordue, supra at 353). "Generally, allowance or denial of applications to intervene in administrative proceedings rests in the discretion of the agency" (Matter of Village of Pleasantville v. Lisa's Cocktail Lounge, 33 N.Y.2d 618, 619 [citations omitted]; see Matter of Campo Corp. v. Feinberg, 279 A.D. 302, 308, affd 303 N.Y. 995). Petitioner's observation that the holding of this Court in Matter of International Assn. of Bridge, Structural Ornamental Iron Workers, Local Union No. 6, AFL-CIO v. State of New York ( 280 A.D.2d 713) precludes intervention in administrative proceedings is incorrect. Contrary to petitioner's analysis of that case, this Court held that the union there lacked standing under Labor Law § 220(8) to obtain judicial review o
Therefore, Counts 13–18 shall stand. The Court having dismissed all of the felony counts of the indictment, the Court hereby transfers the Indictment charging the remaining six misdemeanor Counts of Official Misconduct to the Town of Groveland Justice Court pursuant to N.Y. Constitution, Article VI, § 19 (b) (see Matter of Clute v. McGill, 229 A.D.2d 70, 655 N.Y.S.2d 201 [3d Dept.1997] ).
Therefore, since the felony count has been dismissed for the reasons stated the Court hereby transfers the Indictment charging two misdemeanor counts of Endangering the Welfare of a Child back to the Village of Penn Yan Justice Court pursuant to NY Constitution, Article VI, § 19(b). Matter of Clute v. McGill, 229 AD2d 70. The foregoing constitutes the Opinion, Decision and Judgment of this Court.