Burton v. Hart

Appellate Division of the Supreme Court of New York

Burton v. Hart

306 A.D.2d 276, 760 N.Y.S.2d 349, 2003 N.Y. App. Div. LEXIS 6268

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 2, 2003

StatusPublished

This text of 306 A.D.2d 276 (Burton v. Hart) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burton v. Hart, 306 A.D.2d 276, 760 N.Y.S.2d 349, 2003 N.Y. App. Div. LEXIS 6268 (N.Y. Ct. App. 2003).

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Opinion

—Proceeding pursuant to CPLR article 78, inter alia, in effect, to prohibit Duane A. Hart, a Justice of the Supreme Court, Queens County, from enforcing a final order dated February 5, 2003, holding the petitioner, Elaine Burton, in civil contempt, imposing a fine, and, upon default of payment thereof, incarcerating her.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The extraordinary remedy of prohibition does not lie where, as here, the final order sought to be reviewed is issued pursuant to Judiciary Law § 753 (A) (5) and § 756, in contrast to Judiciary Law § 755. Although the final order is phrased in terms of a summary adjudication, in actuality, it held the petitioner in civil contempt for her failure to comply with a judicial subpoena duces tecum (cf. Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]; La Rocca v Lane, 37 NY2d 575, 578-579 [1975], cert denied 424 US 968 [1976]; Matter of State of New York v King, 36 NY2d 59, 62 [1975]). The remedy is by appeal (see Douglas v Adel, 269 NY 144, 147 [1935]; see also Berkowitz v Astro Moving & Stor. Co., 240 AD2d 450, 452 [1997]). Florio, J.P., Schmidt, Townes and Crane, JJ., concur.

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—Proceeding pursuant to CPLR article 78, inter alia, in effect, to prohibit Duane A. Hart, a Justice of the Supreme Court, Queens County, from enforcing a final order dated February 5, 2003, holding the petitioner, Elaine Burton, in civil contempt, imposing a fine, and, upon default of payment thereof, incarcerating her.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

The extraordinary remedy of prohibition does not lie where, as here, the final order sought to be reviewed is issued pursuant to Judiciary Law § 753 (A) (5) and § 756, in contrast to Judiciary Law § 755. Although the final order is phrased in terms of a summary adjudication, in actuality, it held the petitioner in civil contempt for her failure to comply with a judicial subpoena duces tecum (cf. Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]; La Rocca v Lane, 37 NY2d 575, 578-579 [1975], cert denied 424 US 968 [1976]; Matter of State of New York v King, 36 NY2d 59, 62 [1975]). The remedy is by appeal (see Douglas v Adel, 269 NY 144, 147 [1935]; see also Berkowitz v Astro Moving & Stor. Co., 240 AD2d 450, 452 [1997]). Florio, J.P., Schmidt, Townes and Crane, JJ., concur.

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Bluebook (online)

306 A.D.2d 276, 760 N.Y.S.2d 349, 2003 N.Y. App. Div. LEXIS 6268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-hart-nyappdiv-2003.

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