John P. v. Axelrod — 105 A.D.2d 1061

Majority

p. 1061

John P., Respondent, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants.

Appeal unanimously dismissed as moot, without costs. Memorandum: Respondents appeal from a judgment in a CPLR article 78 proceeding annulling the determination of the administrative hearing officer denying a requested adjournment of a scheduled hearing date in disciplinary proceedings and directing that a new hearing date be selected. The reason for the requested adjournment was to permit respondents’ attorney to attend a Bar Association meeting in New York City. The scheduled hearing date has long since passed, and the matter is moot. Were we to reach the merits, however, we would hold that Special Term erred in granting the relief. The relief, in the nature of prohibition, was not warranted here where no clear right to relief was established and the administrative hearing officer was not threatening to act without jurisdiction or in

p. 1062

excess of his jurisdiction and there was an adequate remedy at law (see Matter of State of New York v King, 36 NY2d 59 ; Rossettie v Finnerty, 85 AD2d 928 ; Matter of Rainka v Whalen, 73 AD2d 731 , affd 51 NY2d 973 ). Moreover, denial of the adjournment was not an abuse of discretion. The records show that a number of expert and lay witnesses, including four physicians, were scheduled to appear at the hearing. The administrative hearing officer acted rationally in declining to require these individuals to reschedule their appearances. (Appeal from order of Supreme Court, Erie County, Ostrowski, J. — art 78.) Present — Hancock, Jr., J. P., Denman, Green, O’Donnell and Schnepp, JJ.

Cases cited

State v. King 36 NY2d 59 N.Y. 1975-01-17 p. 1062
Rainka v. Whalen 51 NY2d 973 N.Y. 1980-11-20 p. 1062