Matter of Application of DC v. Masley

Matter of Application of DC v Masley (2016 NY Slip Op 04662)

Matter of Application of DC v Masley

2016 NY Slip Op 04662

Decided on June 14, 2016

Appellate Division, First 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 June 14, 2016
Tom, J.P., Sweeny, Moskowitz, Richter, Gesmer, JJ.

1389 402790/10 -1387

[*1]In re the Application of DC, Petitioner,

v

Hon. Andrea Masley, etc., Respondent.

Mental Hygiene Legal Service, New York (Diane G. Temkin of counsel), for petitoner.

Eric T. Schneiderman, Attorney General, New York (Michael J. Siudzinski of counsel), for respondent.

Application pursuant to CPLR article 78 for a writ of prohibition to prevent respondent Supreme Court Justice from conducting further proceedings in a guardianship matter unanimously denied, and the proceeding dismissed, without costs.

In a consent guardianship proceeding, upon granting petitioner's motion to discharge her guardian, the court reappointed the court evaluator and ordered a further hearing. Petitioner has "fail[ed] to identify any arrogation of power infringing a clear legal right, and thus the extraordinary remedy of prohibition is not available" (Matter of Perry v Barrett, 113 AD3d 536, 537 [1st Dept 2014], lv denied 23 NY3d 902 [2014]). The court did not dismiss the guardianship petition and did not lose jurisdiction when it discharged the guardian. Even if petitioner is correct that the court erred in ordering a hearing when neither the guardian nor the original guardianship petitioner objected to the motion to discharge, these claims of legal error can be raised on direct appeal and are insufficient to warrant prohibition (see DeVincenzo v Morgenthau, 161 AD2d 476, 477 [1st Dept 1990]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 14, 2016

CLERK