Matter of Leonard Fontani v Joseph Hershowitz

Matter of Fontani v Hershowitz 2004 NY Slip Op 08866 [12 AD3d 672] November 29, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

In the Matter of Leonard Fontani, Appellant,
v
Joseph Hershowitz, Also Known as Joseph Ghershowitz et al., Respondents.

—[*1]

In a proceeding pursuant to CPLR article 78, in effect, to review an order of the Supreme Court, Kings County (Dowd, J.), dated August 7, 2002, the petitioner, Leonard Fontani, appeals from a judgment of the same court dated September 10, 2003, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The petitioner commenced this proceeding pursuant to CPLR article 78, in effect, to review an order of the Supreme Court, Kings County, dated August 7, 2002, dismissing, on the ground of res judicata, an earlier action the petitioner had commenced against the same respondents. The Supreme Court properly dismissed this proceeding on the ground that it failed to state a cause of action upon which CPLR article 78 relief could be granted. Writs of mandamus, prohibition, and certiorari do not lie to review an appealable order or to correct an alleged error of law (see Matter of Branciforte v Spanish Naturopath Socy., 217 AD2d 619 [1995]). The proper remedy, if one is aggrieved by the order of a court, is to take an appeal from the final order or judgment (see Matter of Veloz v Rothwax, 65 NY2d 902 [1985]; Matter of Branciforte v Spanish Naturopath Socy., supra; Matter of Sommer v Harrington, 198 AD2d 508 [1993]). [*2]

The petitioner's remaining contentions are without merit. Ritter, J.P., S. Miller, Goldstein and Mastro, JJ., concur.