Opinion
Argued September 14, 1989
Decided October 17, 1989
Appeal from the Appellate Division of the Supreme Court.
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.
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, N Y Prac § 566, at 793).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Judgment reversed, without costs, and petition dismissed in a memorandum.