Petition for Writ of Prohibition in New York

What Is a Petition for Writ of Prohibition?

Background

A writ of prohibition is designed to prevent an inferior court from proceeding with a judicial matter of which it has no jurisdiction or to prevent it from exceeding its authorized powers in a case over which it has jurisdiction in the first instance. (Voccola v. Shilling, 88 Misc. 2d 103 [Sup. Ct. Kings Cty. 1976].) A court has subject matter jurisdiction over an action or proceeding only where it “has the power, conferred by the Constitution or statute, to entertain the case before it.” (Matter of Fry v. Vill. of Tarrytown, 89 N.Y.2d 714, 718 [1997].)

How to Structure the Motion

Violations of law and procedures by governmental bodies must be annulled. (Civ. Prac. Law & Rules, § 7803(3); Lozada v. Scully, 108 A.D.2d 859 [2nd Dept. 1985].)

A writ of prohibition is properly sought by an Article 78 proceeding pursuant to Section 7801 of Civil Practice Law and Rules. (Civ. Prac. Law & Rules, § 7801.) A writ of prohibition may only be used to prevent a body or officer who is acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without, or in excess of, jurisdiction. (Matter of Newfield Cent. School Dist. v. New York State Div. of Human Rights, 66 A.D.3d 1314, 1315 [3rd Dept. 2009].) It may be invoked “to prevent or control judicial or quasi-judicial action only, as distinguished from legislative, executive or ministerial action.” (Matter of Dondi v. Jones, 40 N.Y.2d 8, 12 [1976].)

A writ of prohibition may be issued when the clear legal right to relief appears and, in the court’s discretion, the remedy is warranted. (Schumer v. Holtzman, 60 N.Y.2d 46, 51 [1983].) It is never available “merely to correct or prevent trial errors of substantive law or procedure, however grievous.” (Hirschfeld v. Friedman, 307 A.D.2d 856, 858 [1st Dept. 2003].) Although the distinction between legal errors and actions in excess of power is not always easy to discern, abuses of power may be identified by their impact upon the entire proceeding as distinguished from an error in a proceeding itself proper. (Johnson v. Price, 28 A.D.3d 79 [1st Dept. 2006].)

“[E]xhaustion of administrative remedies is not required where an agency’s action is challenged as beyond its grant of power.” (Lehigh Portland Cement Co. v. New York State Dept. of Envtl. Conservation, 87 N.Y.2d 136, 140 [1995].) “Since prohibition involves an attack on the jurisdiction of the court or officer, immediate review is made available without regard to the stage of the proceeding or the ability of the aggrieved party to obtain a later review of the determination. (Civ. Serv. Emp. Ass’n v. Helsby, 31 A.D.2d 325, 330 [3rd Dept. 1969].)

The Court’s Decision

“The remedy of prohibition is not granted as of right, but only in the sound discretion of the reviewing court, based on the gravity of the harm caused by the excess of power, the availability of an adequate remedy on appeal or at law or in equity, and the remedial effectiveness of prohibition if such an adequate remedy does not exist.” (Matter of Greenwald v. Scheinman, 94 A.D.2d 842, 844 [1983].)

In exercising its discretion, the courts have imposed a number of restrictions upon the use of the writ of prohibition as liberal encouragement of prohibition would threaten the “orderly administration of justice.” (La Rocca v. Lane, 37 N.Y.2d 575, 579 [1975].) The error must be of a jurisdictional nature, rather than an error of substantive or procedural law. (Rush v. Mordue, 68 N.Y.2d 348, 353 [1986].) It is also well-settled that the extraordinary remedy of prohibition is typically unavailable when the proponent has access to another adequate legal remedy, unless, “in the rare instance, it ‘would furnish a more complete and efficacious remedy.” (Town of Huntington v. State Div. of Human Rights, 82 N.Y.2d 783, 786 [1993].)

Nonetheless, whether an excess of power can be adequately corrected on appeal or by other ordinary proceedings is not controlling in deciding whether to grant prohibition. (La Rocca v. Lane, 37 N.Y.2d 575, 579 [1975].) If prohibition would furnish a more complete and efficacious remedy, it may be used even though other methods of redress are technically available. (Id. at 579-80.)

Timeline

“[A] court’s lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action, and the court may, ex mero motu [on its own motion], at any time, when its attention is called to the facts, refuse to proceed further and dismiss the action.” (Fin. Indus. Regulatory Auth., Inc. v. Fiero, 10 N.Y.3d 12, 17 [2008].)

An Article 78 proceeding “must be commenced within four months after the determination to be reviewed becomes final and binding upon the petition.” (Civ. Prac. Law & Rules, §217(1).) That is, when “the petition receive[d] notice” of the determination. (Matter of Biondo v. N.Y. State Bd. of Parole, 60 N.Y.2d 832, 834 [1983].)