Matter of Falco v. Spinner , 24 N.Y.S.3d 518 ( 2016 )

Matter of Falco v Spinner (2016 NY Slip Op 00971)

Matter of Falco v Spinner

2016 NY Slip Op 00971

Decided on February 10, 2016

Appellate Division, Second Department

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.

Decided on February 10, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
BETSY BARROS, JJ.

2015-11636

[*1]In the Matter of Gabriel Raymond Falco, petitioner,

v

Jeffrey Arlen Spinner, etc., et al., respondents.

Arthur Graseck, Jr., Oakdale, NY, for petitioner.

Eric T. Schneiderman, Attorney General, New York, NY (Michelle R. Lambert of counsel), for respondent Jeffrey Arlen Spinner.

Arza Feldman, Uniondale, NY, for respondent Laura Ann Bowery Falco.

Darelle C. Cairo, Riverhead, NY, attorney for the children.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondent Jeffrey Arlen Spinner, an Acting Justice of the Supreme Court, Suffolk County, from enforcing his order dated November 4, 2015, inter alia, granting the motion of the respondent Laura Ann Bowery Falco to hold the petitioner in contempt for failing to pay child support, and his order dated November 10, 2015, denying the petitioner's motion to vacate a prior order of the same court.

ADJUDGED that the petition is denied and the proceeding is dismissed on the merits, without costs or disbursements.

"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers" (Matter of Holtzman v Goldman , 71 NY2d 564, 569; see Matter of Rush v Mordue , 68 NY2d 348, 352). The petitioner failed to establish a clear legal right to relief in the nature of prohibition.

CHAMBERS, J.P., ROMAN, SGROI and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court