Mulligan v. Zittell

Appellate Division of the Supreme Court of New York

Mulligan v. Zittell

72 A.D.2d 627, 1979 N.Y. App. Div. LEXIS 13761

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

DecidedOctober 12, 1979

StatusPublished

This text of 72 A.D.2d 627 (Mulligan v. Zittell) 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.

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Mulligan v. Zittell, 72 A.D.2d 627, 1979 N.Y. App. Div. LEXIS 13761 (N.Y. Ct. App. 1979).

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Opinion

Motion by respondent granted, without costs, and proceeding commenced by order to show cause dated July 23, 1979 dismissed. By this proceeding, petitioner seeks a judgment pursuant to CPLR article 78, prohibiting the respondent Judge of the Family Court from entertaining a petition for child support on the ground that a matrimonial action previously commenced by petitioner’s wife is presently pending in Supreme Court, Columbia County. Without deciding whether the pendency of this action would prevent the Family Court from entertaining the petition pursuant to subdivision (b) of section 464 of the Family Court Act or whether the remedy of prohibition would be available to petitioner under the circumstances (see, e.g., La Rocca v Lane, 37 NY2d 575, 579), we conclude that the issue need not now be decided in view of the subsequent voluntary discontinuance of the action and the order of Special Term dated September 13, 1979 denying petitioner’s motion to vacate the discontinuance. Greenblott, J. P., Sweeney, Main, Mikoll and Herlihy, JJ., concur.

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Motion by respondent granted, without costs, and proceeding commenced by order to show cause dated July 23, 1979 dismissed. By this proceeding, petitioner seeks a judgment pursuant to CPLR article 78, prohibiting the respondent Judge of the Family Court from entertaining a petition for child support on the ground that a matrimonial action previously commenced by petitioner’s wife is presently pending in Supreme Court, Columbia County. Without deciding whether the pendency of this action would prevent the Family Court from entertaining the petition pursuant to subdivision (b) of section 464 of the Family Court Act or whether the remedy of prohibition would be available to petitioner under the circumstances (see, e.g., La Rocca v Lane, 37 NY2d 575, 579), we conclude that the issue need not now be decided in view of the subsequent voluntary discontinuance of the action and the order of Special Term dated September 13, 1979 denying petitioner’s motion to vacate the discontinuance. Greenblott, J. P., Sweeney, Main, Mikoll and Herlihy, JJ., concur.

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72 A.D.2d 627, 1979 N.Y. App. Div. LEXIS 13761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulligan-v-zittell-nyappdiv-1979.

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