Roberts v. County Court of Wyoming County

Decision Date29 June 1972
Citation39 A.D.2d 246,333 N.Y.S.2d 882
PartiesApplication of Burton B. ROBERTS, as District Attorney of Bronx County, Petitioner, v. COUNTY COURT OF WYOMING COUNTY et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Burton N. Pugach, pro se.

Hayden H. Dadd, Attica, for respondents County Court of Wyoming County, and Hon. John S. Conable.



GOLDMAN, Presiding Justice:

This is an original proceeding commenced by Burton B. Roberts, as District Attorney of Bronx County, pursuant to section 7804, subdivision (b), of the Civil Practice Law and Rules, seeking a writ of prohibition against the County Court of Wyoming County and County Judge John B. Conable. The District Attorney seeks to restrain respondent County Judge from allegedly acting in excess of his jurisdiction and authority with respect to his order granting a writ of habeas corpus to relator Burton N. Pugach. The habeas corpus writ was sustained to the extent of ordering a hearing to be held in Bronx County with regard to relator Pugach's mental capacity to stand trial at the time of his trial and original conviction in Bronx County in 1962 on charges of assault, burglary, maiming and conspiracy.

In its decision filed August 12, 1971, County Court agreed with relator's contention that he was denied his fundamental constitutional rights at the time of his trial. Pugach maintained that he did not have a fair trial in that he was not permitted to have the hearing concerning his mental ability to stand trial presided over by a judge other than the same judge who presided at relator's trial. In granting the writ, Judge Conable ordered that Pugach be remanded to the authorities of Bronx County so that he might have a new hearing as to his sanity at the time of the trial in 1962. The County Court order provided that, pursuant to People v. Hudson, 19 N.Y.2d 137, 278 N.Y.S.2d 593, 225 N.E.2d 193, the relator should have his hearing before a judge other than Judge Martinis, who presided at Pugach's trial and at the original sanity hearing (33 Misc.2d 938, 225 N.Y.S.2d 822).

The ordered mental capacity hearing was commenced in Bronx County before Acting Supreme Court Justice Melia on March 6, 1972 and the District Attorney appeared and participated in the hearing. The hearing was adjourned to March 13, 1972 and again to April 18, 1972. On April 14, 1972 this Court, upon application of petitioner, stayed all further proceedings, pending the hearing and determination of the present application for the writ of prohibition.

At the outset two threshold procedural issues must be resolved. The first concerns the availability of the remedy of prohibition to petitioner. The second question involves respondent's allegation that the affirmative defense of the statute of limitations bars the present proceeding irrespective of whether a proceeding in the nature of a writ of prohibition is considered to be an appropriate remedy in the instant situation.

Prohibition is an extraordinary remedy issued in the sound discretion of the court where the grievance cannot adequately be redressed by ordinary proceedings at law or in equity (Mtr. of Lawrence v. Supreme Court of State of New York, Co. of New York, 24 A.D.2d 849, 264 N.Y.S.2d 501; see, also, People ex rel. Mayor v. Nichols, 79 N.Y. 582; 23 Carmody-Wait 2d, § 145.214, p. 785). However, it is well established that prohibition is an appropriate remedy to restrain a court from exceeding its authorized powers in a proceeding over which it has original jurisdiction, as well as restraining a court from the unwarranted assumption of jurisdiction (Proskin v. County Ct. of Albany Co., 30 N.Y.2d 15, 330 N.Y.S.2d 44, 280 N.E.2d 875; Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 318 N.Y.S.2d 705, 267 N.E.2d 452; Matter of Hogan v. Court of General Sessions, 296 N.Y. 1, 68 N.E.2d 849). Applying these principles, it is clear that prohibition would here be a proper vehicle if it were established that petitioner lacked an adequate remedy at law, such as appeal. Petitioner contends that if he proceeded by way of appeal, he would have suffered irreparable injury and, therefore, that remedy would be manifestly inadequate.

The original Wyoming County Court order remanding relator to Bronx County for a hearing was entered on September 3, 1971. The District Attorney took no action with respect to this order until about five months later when he moved for reargument, which was denied on February 12, 1972. It was only after the Wyoming County Court refused to permit reargument that petitioner filed a notice of appeal. This did not cure the failure to appeal from the original order. It is well settled that the denial of motion to reargue is not appealable and the aggrieved party may only appeal from the original order, if it is timely made (Roberts v. Connelly, 35 A.D.2d 813, 316 N.Y.S.2d 675; Matter of Foglia, 32 A.D.2d 836, 303 N.Y.S.2d 206; 7 Weinstein-Korn-Miller, N.Y.Civ.Prac., 5514.03, 5701.23; 10 Carmody-Wait 2d, § 70.42, p. 310). Accordingly, petitioner's contention that appeal is an inadequate remedy is only true insofar as petitioner himself failed to perfect his appeal timely. This is clearly an improper ground on which to sustain an application for a writ of prohibition. To do so would circumvent the time requirements of the appeal process.

Moreover, there is no merit to petitioner's unsupported assertion that 'an appeal from this order is not possible until a final determination of the writ is had'. All of the issues are before us on this application and nothing remains to be determined by this Court after this decision. Therefore, the application for the writ of prohibition should be denied on the ground that petitioner failed to take advantage of the available procedure of appeal. See, also, Matter of Marra v. County Court of County of Genesee, 17 A.D.2d 902, 233 N.Y.S.2d 311.

The second procedural issue involves respondent's contention that the instant application is barred by the four-month statute of limitations set forth in section 217 of the CPLR. Petitioner has not responded to this contention in any of the papers submitted here. It appears that the resolution of this question is a matter of first impression for an appellate court in this State. Section 217 of the CPLR provides in pertinent part, as follows:

'(A) proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner * * *'.

It would seem from this language that there is a period of limitation of four months applicable to all proceedings brought against a body or officer in an Article 78 proceeding. However, one of the leading treatises in the field, Weinstein-Korn-Miller, states otherwise. In 8 Weinstein-Korn-Miller, N.Y.Civ.Prac., 7804.02, the authors make the following comments concerning the re-enactment of section 1286 of the former Civil Practice Act, without substantial modification, in section 217 of the CPLR:

'It carries forward the scheme of Article 78 as enacted in 1937, so that the same basic four-month limitation period applies to relief in the nature of certiorari or mandamus And no limitation provision applies to relief in the nature of prohibition'. (emphasis added) (citing 3 N.Y.Jud. Council Rep. 183 (1937)).

A different point of view, however, is expressed in the writings of two other substantial authorities. In 24 Carmody-Wait 2d, § 145:237, p. 11, the authors state that although CPLR 217 was meant to re-enact Civ.Prac. Act, § 1286 without substantial change, nevertheless, the four-month period of limitations must be viewed as being equally applicable to prohibition as it is in dealing with mandamus and certiorari. Professor Joseph M. McLaughlin in the Practice Commentaries to CPLR 217 (Book 7B, McKinney's, p. 508) adopts a position somewhat between Weinstein- Korn-Miller and Carmody-Wait. He states that it is clear that the period of limitations is four months for an action in the nature of a writ of prohibition, but that uncertainty arises with respect to what event triggers the running of the statute.

These three positions are all supported by a substantial amount of logic. However, we are constrained to adopt the opinion that due to the extraordinary nature of the writ, its application should be controlled by the exercise of the sound discretion of the court in each case. The length of the period of limitation should depend on the particular facts of each proceeding. Threatened excesses of judicial authority in a proper case might well be restrained even after the expiration of the four-month period. However, where the petitioner has delayed the commencement of the proceeding beyond the time reasonably necessary to protect his rights, the remedy should be denied in the exercise of the court's discretion. If it were necessary to bottom our decision on the theory that the petitioner did not commence this proceeding within a reasonable time after the filing of the Wyoming County Court's order on August 12, 1971, we would so hold. The District Attorney is not an unsophisticated litigant and should be expected to act promptly in a proceeding such as the one at bar. Although we would be amply justified in dismissing the proceeding by reason of the time limitation, there are sufficient other grounds for its dismissal.

It is petitioner's central contention in this proceeding that the underlying order which granted the relator's writ of habeas corpus is invalid for two reasons: (1) because the basis of the relator's writ amounted to no more than a claim of denial of due process at the trial level, and as such was cognizable exclusively under a writ of error coram nobis in the county of conviction; and (2) because the Wyoming County Co...

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