Warburton v. Polito

242 A.D.2d 979, 668 N.Y.S.2d 963, 1997 N.Y. App. Div. LEXIS 10662

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1997
• Status: Published

Opinion

Motion to vacate decision and for other relief denied. Memorandum: Petitioner has no cognizable basis for a CPLR article 78 proceeding because the relief that he seeks may be sought only on direct appeal. Petitioner may appeal from the order denying his motion to dismiss in the underlying action once an order has been entered and served. With respect to recusal of the Trial Judge in the underlying action, petitioner’s remedy is to move for recusal and to appeal an adverse order, if any. Present—Green, J. P., Pine, Lawton, Hayes and Balio, JJ.