Opinion
October 18, 1979
Motion for an order, variously of mandamus and prohibition, against a Supreme Court Justice at Special Term, denied, as is the separate motion for a stay and for consolidation with the pending appeal, and the cross motion to dismiss granted, without costs. The apparent reason that CPLR article 78 is sought to be availed of rather than appellate review is that expedition is desired to prevent dire consequences to petitioner by way of arrest. We find no reason to apprehend that danger and, in any event, the provisions of CPLR 5519 would be available in the appellate process. The extraordinary remedies provided by CPLR article 78 are not to be used as substitutes for appellate review when, as here, the latter would be available and adequate. (See Matter of Russell v Murray, 49 A.D.2d 772; Siegel, New York Practice, § 558; CPLR 7801, subd 1; 5521; Weinstein-Korn-Miller, N Y Civ Prac, vol 8, par 7801.06; vol 7, par 5704.04.)
Concur — Kupferman, J.P., Birns, Markewich, Ross and Lynch, JJ.