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MATTER OF MULVANEY v. Dubin

431 N.E.2d 292, 55 N.Y.2d 668, 446 N.Y.S.2d 931, 1981 N.Y. LEXIS 3244
CourtNew York Court of Appeals
DecidedNovember 23, 1981
StatusPublished
Cited by23 cases

This text of 431 N.E.2d 292 (MATTER OF MULVANEY v. Dubin) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MATTER OF MULVANEY v. Dubin, 431 N.E.2d 292, 55 N.Y.2d 668, 446 N.Y.S.2d 931, 1981 N.Y. LEXIS 3244 (N.Y. 1981).

Opinion

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

*669 The Appellate Division should have dismissed the petition for article 78 relief, in the nature of prohibition, to prevent Supreme Court from requiring defendant to give the prosecution a written report of his examination by a court-appointed psychiatrist. The extraordinary remedy of prohibition lies only where a court “acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (Matter of State of New York v King, 36 NY2d 59, 62; Matter of Gold v Gartenstein, 54 NY2d 627, 629). It is not available, however, as a means of seeking collateral review of an error of law in a pending criminal action (Matter of State of New York v King, supra, p 62). The petition here alleges no more than such an error and, therefore, the remedy sought does not lie. The petition should have been dismissed. In light of this disposition, there is no occasion to reach the merits of defendant’s claim.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Judgment reversed, etc.

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431 N.E.2d 292, 55 N.Y.2d 668, 446 N.Y.S.2d 931, 1981 N.Y. LEXIS 3244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-mulvaney-v-dubin-ny-1981.