Matter of Application of DC v. Masley

140 A.D.3d 493, 32 N.Y.S.3d 484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2016
• Docket: 1389 402790/10 -1387
• Status: Published

Opinion

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 “failfed] 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 Matter of DeVincenzo v Morgenthau, 161 AD2d 476, 477 [1st Dept 1990]).

Concur — Tom, J.P., Sweeny, Moskowitz, Richter and Gesmer, JJ.