Tyler v. Forma

Appellate Division of the Supreme Court of New York

Tyler v. Forma

231 A.D.2d 891, 647 N.Y.S.2d 314, 1996 N.Y. App. Div. LEXIS 10732

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

DecidedSeptember 27, 1996

StatusPublished

Cited by10 cases

This text of 231 A.D.2d 891 (Tyler v. Forma) 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.

Bluebook

Tyler v. Forma, 231 A.D.2d 891, 647 N.Y.S.2d 314, 1996 N.Y. App. Div. LEXIS 10732 (N.Y. Ct. App. 1996).

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Opinion

Petition unanimously dismissed without costs. Memorandum: Petitioner appealed from an order of Supreme Court that denied his application for a writ of habeas corpus. Rather than perfecting that appeal, petitioner commenced this original CPLR article 78 proceeding in the nature of prohibition, seeking to prohibit respondent from "accepting and considering any and all affidavits or affirmations and return in opposition to petitioner’s motion for an order of preclusion and default judgments * * * [and] in opposition to petitioner’s writ of habeas corpus”.

A CPLR article 78 proceeding is not the appropriate method to seek review of issues that could be raised on direct appeal, [892]*892and the petition is therefore dismissed (see, Hodge v LoRusso, 181 AD2d 1009; Matter of Sans v Doyle, 175 AD2d 670, 671). Were we to reach the merits, we would conclude that the petition alleges merely an error of law or abuse of discretion that does not constitute the kind of abuse or perversion of a court’s jurisdiction as would warrant the issuance of a writ of prohibition (see, Development Auth. v Sayyeau, 134 AD2d 959, 960, lv denied 71 NY2d 804). (Original Proceeding Pursuant to CPLR art 78.) Present—Lawton, J. P., Wesley, Callahan, Davis and Boehm, JJ.

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Petition unanimously dismissed without costs. Memorandum: Petitioner appealed from an order of Supreme Court that denied his application for a writ of habeas corpus. Rather than perfecting that appeal, petitioner commenced this original CPLR article 78 proceeding in the nature of prohibition, seeking to prohibit respondent from "accepting and considering any and all affidavits or affirmations and return in opposition to petitioner’s motion for an order of preclusion and default judgments * * * [and] in opposition to petitioner’s writ of habeas corpus”.

A CPLR article 78 proceeding is not the appropriate method to seek review of issues that could be raised on direct appeal, [892]*892and the petition is therefore dismissed (see, Hodge v LoRusso, 181 AD2d 1009; Matter of Sans v Doyle, 175 AD2d 670, 671). Were we to reach the merits, we would conclude that the petition alleges merely an error of law or abuse of discretion that does not constitute the kind of abuse or perversion of a court’s jurisdiction as would warrant the issuance of a writ of prohibition (see, Development Auth. v Sayyeau, 134 AD2d 959, 960, lv denied 71 NY2d 804). (Original Proceeding Pursuant to CPLR art 78.) Present—Lawton, J. P., Wesley, Callahan, Davis and Boehm, JJ.

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Bluebook (online)

231 A.D.2d 891, 647 N.Y.S.2d 314, 1996 N.Y. App. Div. LEXIS 10732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tyler-v-forma-nyappdiv-1996.

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