Opinion
Argued June 3, 1985
Decided July 2, 1985
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Edward J. Greenfield, J.
Peter R. Cella, Jonathan L. Rosner and Philip Bisceglia for appellant.
Robert Abrams, Attorney-General ( O. Peter Sherwood, Robert Hermann and Jane Levine of counsel), for respondents.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice E. Leo Milonas.
In affirming, we note that respondents have not objected to the use of prohibition as a means of challenging respondent Superintendent's action in appointing respondent Liebowitz to hear the charges against it. Prohibition is not available to prevent administrative action unless the agency is acting in a judicial or quasi-judicial capacity ( see, Siegel, N Y Prac § 559; 23 Carmody-Wait 2d, N Y Civ Prac § 145:210) and even then it is generally not appropriate if another avenue of judicial review may be pursued without irreparable injury to the applicant ( see, Matter of City of Newburgh v Public Employment Relations Bd., 63 N.Y.2d 793). The Superintendent's appointment in this case could have been challenged by an article 78 certiorari proceeding after the hearing and therefore a motion to dismiss the petition should have been made and granted ( see also, Hecht v City of New York, 60 N.Y.2d 57).
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur.
Order affirmed, with costs, in a memorandum.