Opinion
1378 OP 17–00987
12-22-2017
In the MATTER OF Gary POOLER, Petitioner, v. Hon. John J. ARK, Respondent.
ERNSTROM & DRESTE, LLP, ROCHESTER (TIMOTHY D. BOLDT OF COUNSEL), FOR PETITIONER. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (WILLIAM E. STORRS OF COUNSEL), FOR RESPONDENT.
ERNSTROM & DRESTE, LLP, ROCHESTER (TIMOTHY D. BOLDT OF COUNSEL), FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (WILLIAM E. STORRS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: Petitioner commenced this original proceeding in this Court pursuant to CPLR article 78 seeking to vacate and set aside an order of respondent that granted a monetary judgment against him. The order was entered against him in connection with a lawsuit brought against a corporation of which petitioner was the president and sole shareholder. Petitioner alleged that he was not named as a party in that lawsuit and was not summoned before Supreme Court, and thus respondent had no power to grant relief against him (see generally Oakley v. Albany Med Ctr., 39 A.D.3d 1016, 1017, 832 N.Y.S.2d 694 [3d Dept. 2007] ; Hartloff v. Hartloff, 296 A.D.2d 849, 849–850, 745 N.Y.S.2d 363 [4th Dept. 2002] ).
We conclude that petitioner is seeking relief in the nature of prohibition, but he has not demonstrated the requisite clear legal right to that relief (see Matter ofPirro v. Angiolillo, 89 N.Y.2d 351, 356, 653 N.Y.S.2d 237, 675 N.E.2d 1189 [1996] ). Such relief is available when a court "acts or threatens to act either without jurisdiction or in excess of its authorized powers" ( Matter ofHoltzman v. Goldman, 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297 [1988];see Pirro, 89 N.Y.2d at 355, 653 N.Y.S.2d 237, 675 N.E.2d 1189 ), and "[t]he extraordinary remedy of prohibition is never available merely to correct or prevent trial errors of substantive law or procedure, however grievous" ( La Rocca v. Lane, 37 N.Y.2d 575, 579, 376 N.Y.S.2d 93, 338 N.E.2d 606 [1975], cert.denied 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734 [1976] ). Prohibition is "ordinarily unavailable if a ‘grievance can be redressed by ordinary proceedings at law or in equity or merely to prevent an error which may be readily corrected on appeal’ " ( Matter of Echevarria v. Marks, 14 N.Y.3d 198, 221, 899 N.Y.S.2d 76, 925 N.E.2d 878 [2010], cert. denied 562 U.S. 947, 131 S.Ct. 125, 178 L.Ed.2d 242 [2010] ). The decision whether to grant prohibition is within the discretion of the court (see Matter ofSoares v. Herrick, 20 N.Y.3d 139, 145, 957 N.Y.S.2d 664, 981 N.E.2d 260 [2012]; Matter ofRush v. Mordue, 68 N.Y.2d 348, 354, 509 N.Y.S.2d 493, 502 N.E.2d 170 [1986] ).
Petitioner contends that respondent lacked personal jurisdiction to issue the January order against him, not that respondent lacked subject matter jurisdiction or the power to issue the order (see Matter of Hirschfeld v. Friedman, 307 A.D.2d 856, 858, 763 N.Y.S.2d 580 [1st Dept. 2003] ), and thus prohibition does not lie. Furthermore, we decline to exercise our discretion to grant the requested relief because there exist other remedies by which petitioner may seek the same relief (see id. at 858–859, 763 N.Y.S.2d 580 ; see generally Echevarria, 14 N.Y.3d at 221, 899 N.Y.S.2d 76, 925 N.E.2d 878 ). Namely, petitioner could appeal directly from the order, even as a nonparty (see Stewart v. Stewart, 118 A.D.2d 455, 458–459, 499 N.Y.S.2d 945 [1st Dept. 1986] ), or he could move to vacate the order and appeal from any subsequent order denying that relief (see CPLR 5015[a][4] ; Riverside Capital Advisors, Inc. v. First Secured Capital Corp., 28 A.D.3d 457, 460, 814 N.Y.S.2d 646 [2d Dept. 2006] ; Hartloff, 296 A.D.2d at 849–850, 745 N.Y.S.2d 363 ).
It is hereby ORDERED that said petition is unanimously dismissed without costs.