Holtzman v. Marrus — 74 N.Y.2d 865

Majority

p. 865

In the Matter of Elizabeth Holtzman, Respondent, v Alan Marrus, as a Justice of the Supreme Court, et al., Appellants.

Argued September 14, 1989;

decided October 17, 1989

p. 866

APPEARANCES OF COUNSEL

Alan D. Marrus, appellant pro se.

Robert S. Dean and Philip L. Weinstein for Geraldo Charry, appellant.

Elizabeth Holtzman, District Attorney (Janet M. Berk, Barbara D. Underwood and Roseann B. MacKechnie of counsel), respondent pro se.

OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed and the petition dismissed.

The court had jurisdiction to try the case and the only question is whether it had the power to issue the preclusion order. Even if prohibition were available to challenge such an order the proceeding would have to be commenced within four months of the date on which the order became final and binding (CPLR 217). Because the order in this case went into effect immediately, the petition served on Justice Marrus more than four months after that date was untimely (see, Siegel, NY Prac § 566, at 793).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

p. 867

Judgment reversed, without costs, and petition dismissed in a memorandum.