Lownes v. Family Court

24 A.D.2d 443, 260 N.Y.S.2d 924, 1965 N.Y. App. Div. LEXIS 3742

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1965
• Status: Published

Opinion

Order, entered October 21, 1964, dismissing petition for a judgment in the nature of prohibition pursuant to article 78 of CPLR, on motion addressed to the legal sufficiency of the petition under CPLR 7804(f), unanimously affirmed, with $50 costs and disbursements to respondents. Accepting the facts alleged on the face of the petition as true, Special Term properly reasoned and determined that there was insufficient to support an exercise of discretion in favor of granting the extraordinary remedy. Initially, petitioner had an adequate remedy to contest the separable issues of jurisdiction over the subject matter and over his person dependent upon the single fact of residence in the county and State, pursuant to CPLR 3211(a)(2) and (8) (cf. CPLR 308, subd. 3; 320, subd. [b]. On the applicability of CPLR, see CPLR 101; Family Ct. Act, § 168; Matter of Schwartz v. Schwartz, 23 A D 2d 204). Even now, he has the adequate remedy of moving to open his default in the Family Court proceedings. Such a motion would be entitled to substantial consideration. If petitioner is correct on the fact of residence, there was never jurisdiction over the subject matter, and the issue of personal jurisdiction, at least for the practical purposes of this case, would be merged into the larger and more fundamental question of subject-matter jurisdiction. Should the issue of residence be determined against him, petitioner would also have a significant remedy by way of appeal. Concur — Breitel, J. P., Valente, McNally, Stevens and Steuer, JJ.