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Justice v. Hudson

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


April 24, 2009

IN THE MATTER OF JOHN D. JUSTICE, PETITIONER-APPELLANT,
v.
MICHAEL E. HUDSON, JUDGE OF THE NEW YORK STATE COURT OF CLAIMS, AND THE STATE OF NEW YORK, RESPONDENTS-RESPONDENTS.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Christopher J. Burns, J.), entered May 23, 2008 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: HURLBUTT, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum

Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to prohibit respondent, a Court of Claims judge, from adjourning his motions and the State of New York's cross motions pending in petitioner's action in the Court of Claims. Supreme Court properly dismissed the petition. "[T]he petition alleges merely an . . . abuse of discretion that does not constitute the kind of abuse or perversion of a court's jurisdiction as would warrant the issuance of a writ of prohibition" (Matter of Tyler v Forma, 231 AD2d 891, 892; see People ex rel. Patrick v Fitzgerald, 73 App Div 339, 345).

20090424

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