Shulman v. Cahill

Appellate Division of the Supreme Court of New York

Shulman v. Cahill

8 A.D.3d 26, 777 N.Y.S.2d 631, 2004 N.Y. App. Div. LEXIS 7589

Appellate Division of the Supreme Court of the State of New York·Decided June 3, 2004·Published·Cited by 1 cases

Opinion

[27]*27Order, Supreme Court, New York County (Kibbie F. Payne, J.), entered April 16, 2003, which dismissed the petition brought pursuant to CPLR article 78 to annul determinations of respondent finding that certain disciplinary complaints filed by petitioner did not merit further investigation, unanimously affirmed, without costs.

Supreme Court was without jurisdiction to review disciplinary dispositions of the Departmental Disciplinary Committee, such jurisdiction having been vested exclusively in the Appellate Division (see Erie County Water Auth. v Western N.Y. Water Co., 304 NY 342 [1952], cert denied 344 US 892 [1952]; Matter of Anonymous v Grievance Comm, of State of NY., 10th Jud. Dist., 244 AD2d 549 [1997], lv denied 91 NY2d 808 [1998]; Judiciaiy Law § 90). In any event, mandamus does not lie to compel the Disciplinary Committee to investigate particular complaints, since the determination whether to investigate a complaint entails the Committee’s exercise of discretion (see Sassower v Commission on Jud. Conduct, 289 AD2d 119 [2001], lv denied 99 NY2d 504 [2002]). Were petitioner’s arguments properly before us on this appeal, we would reject them. Concur— Nardelli, J.P., Saxe, Williams and Friedman, JJ.

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[27]*27Order, Supreme Court, New York County (Kibbie F. Payne, J.), entered April 16, 2003, which dismissed the petition brought pursuant to CPLR article 78 to annul determinations of respondent finding that certain disciplinary complaints filed by petitioner did not merit further investigation, unanimously affirmed, without costs.

Supreme Court was without jurisdiction to review disciplinary dispositions of the Departmental Disciplinary Committee, such jurisdiction having been vested exclusively in the Appellate Division (see Erie County Water Auth. v Western N.Y. Water Co., 304 NY 342 [1952], cert denied 344 US 892 [1952]; Matter of Anonymous v Grievance Comm, of State of NY., 10th Jud. Dist., 244 AD2d 549 [1997], lv denied 91 NY2d 808 [1998]; Judiciaiy Law § 90). In any event, mandamus does not lie to compel the Disciplinary Committee to investigate particular complaints, since the determination whether to investigate a complaint entails the Committee’s exercise of discretion (see Sassower v Commission on Jud. Conduct, 289 AD2d 119 [2001], lv denied 99 NY2d 504 [2002]). Were petitioner’s arguments properly before us on this appeal, we would reject them. Concur— Nardelli, J.P., Saxe, Williams and Friedman, JJ.

Shulman v. Cahill, 8 A.D.3d 26, 777 N.Y.S.2d 631, 2004 N.Y. App. Div. LEXIS 7589 (N.Y. Ct. App. 2004).

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