MATTER OF AM. TRANSIT INS. CO. v. Corcoran

New York Court of Appeals

MATTER OF AM. TRANSIT INS. CO. v. Corcoran

482 N.E.2d 918, 65 N.Y.2d 828, 65 N.Y. 828, 493 N.Y.S.2d 122, 1985 N.Y. LEXIS 15711

New York Court of Appeals·Decided July 2, 1985·Published·Cited by 36 cases

Opinion

*830 OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice E. Leo Milonas.

In affirming, we note that respondents have not objected to the use of prohibition as a means of challenging respondent Superintendent’s action in appointing respondent Liebowitz to hear the charges against it. Prohibition is not available to prevent administrative action unless the agency is acting in a judicial or quasi-judicial capacity (see, Siegel, NY Prac § 559; 23 Carmody-Wait 2d, NY Civ Prac § 145:210) and even then it is generally not appropriate if another avenue of judicial review may be pursued without irreparable injury to the applicant (see, Matter of City of Newburgh v Public Employment Relations Bd., 63 NY2d 793). The Superintendent’s appointment in this case could have been challenged by an article 78 certiorari proceeding after the hearing and therefore a motion to dismiss the petition should have been made and granted (see also, Hecht v City of New York, 60 NY2d 57).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed, with costs, in a memorandum.

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*830 OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice E. Leo Milonas.

In affirming, we note that respondents have not objected to the use of prohibition as a means of challenging respondent Superintendent’s action in appointing respondent Liebowitz to hear the charges against it. Prohibition is not available to prevent administrative action unless the agency is acting in a judicial or quasi-judicial capacity (see, Siegel, NY Prac § 559; 23 Carmody-Wait 2d, NY Civ Prac § 145:210) and even then it is generally not appropriate if another avenue of judicial review may be pursued without irreparable injury to the applicant (see, Matter of City of Newburgh v Public Employment Relations Bd., 63 NY2d 793). The Superintendent’s appointment in this case could have been challenged by an article 78 certiorari proceeding after the hearing and therefore a motion to dismiss the petition should have been made and granted (see also, Hecht v City of New York, 60 NY2d 57).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed, with costs, in a memorandum.

MATTER OF AM. TRANSIT INS. CO. v. Corcoran, 482 N.E.2d 918, 65 N.Y.2d 828, 65 N.Y. 828, 493 N.Y.S.2d 122, 1985 N.Y. LEXIS 15711 (N.Y. 1985).

Pincite

482 N.E.2d 918 (MATTER OF AM. TRANSIT INS. CO. v. Corcoran) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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