Opinion
October 11, 1984
Appeal from the Family Court of the City of New York, New York County (J. Turret, J., A.H. Schwartz, J.).
Though they are called a habeas corpus proceeding and a custody action, the proceedings in the Family Court are clearly brought to review and to reverse the action of the appellant, the Commissioner of the New York City Department of Social Services, in removing a child from the foster parent's, petitioner Savage, home and custody. Such removal was done pursuant to section 400 Soc. Serv. of the Social Services Law. The statute explicitly provides for appeal of such an action by "fair hearing" procedure (Social Services Law, § 400, subd. 2; § 22) which in turn is judicially reviewable by a CPLR article 78 proceeding (Social Services Law, § 22, subd. 9, par [b]).
Petitioner Savage did avail herself of the "fair hearing" procedure specified in section 22 Soc. Serv. of the Social Services Law. After it was decided against her, she brought the present habeas corpus proceeding and custody action.
We think it is settled that an article 78 proceeding is the exclusive procedure for such judicial review. ( People ex rel. Ninesling v Nassau County Dept. of Social Servs., 46 N.Y.2d 382, 386; cf. Matter of Kim W., 58 N.Y.2d 811, revg Matter of Walker, 87 A.D.2d 435, for the reasons stated by Justice Markewich in his dissent in the Appellate Division.) It follows that neither a habeas corpus proceeding nor a custody action will lie to review such action.
The Family Court does not have jurisdiction to entertain an article 78 proceeding. The fact that the Corporation Counsel moved to transfer the habeas corpus proceeding from the Supreme Court to the Family Court does not confer on the Family Court jurisdiction to treat the proceedings before it as an article 78 proceeding and to exercise the powers of a court which has jurisdiction to entertain article 78 proceedings.
We note that there is in fact a dormant article 78 proceeding now pending in the Supreme Court. Any issues properly reviewable by an article 78 proceeding can be reviewed in that pending proceeding. If, as petitioner contends, there is newly discovered evidence bearing on the issues, application can be made to the administrative agency to reopen the proceedings on that ground. (Cf. Matter of Singer v Kirby, 96 A.D.2d 889.)
Concur — Sullivan, J.P., Asch, Silverman, Bloom and Alexander, JJ.