Matter of Dimitri Bediner v Neil Jon Firetog

Matter of Bediner v Firetog 2006 NY Slip Op 05780 [31 AD3d 634] July 18, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 20, 2006

In the Matter of Dimitri Bediner, Petitioner,
v
Neil Jon Firetog, as Justice of the Supreme Court of the State of New York, et al., Respondents.

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Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prevent the release and dissemination of the Sex Offender Registration level three designation for the petitioner.

Adjudged that the petition is denied and the proceeding is dismissed, without costs or disbursements.

Prohibition is an extraordinary remedy which "is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers" (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]). "Even where a court exceeds its authority, prohibition does not issue as of right, but may issue only in the sound discretion of the court upon consideration of such factors as the gravity of the harm caused, the availability of an adequate remedy on appeal, at law or in equity, and the remedial effectiveness of prohibition" (Matter of Dillon v Eiberson, 251 AD2d 329 [1998]; see Matter of Eberhardt v City of Yonkers, 305 AD2d 501, 502 [2003]).

Where, as here, there are other adequate legal avenues by which the petitioner can raise his grievances, a writ of prohibition is inappropriate (see Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993]; Matter of Feldman v Marcus, 23 AD3d 559, [*2]560 [2005], lv denied 7 NY3d 703 [2006]). Accordingly, we deny the petition and dismiss the proceeding.

Cross motion by the respondents Neil Jon Firetog, Danny K. Chun, and Chauncey G. Parker to dismiss the proceeding pursuant to CPLR 3211 (a) (7) and 7804 (f) for failure to state a claim. By decision and order on motion dated April 7, 2006, the cross motion was held in abeyance and referred to the panel of Justices hearing the proceeding upon the argument or submission thereof.

Upon the papers filed in support of the cross motion, the papers filed in opposition thereto, and the submission of the proceeding, it is

Ordered that the cross motion is denied as academic. Florio, J.P., Krausman, Mastro and Dillon, JJ., concur.