Opinion
December 7, 1970
Proceeding pursuant to article 78 of the CPLR to prohibit Hon. LEO BROWN, a Justice of the Supreme Court, County of Queens, from performing or taking any acts or proceedings in connection with an action before him entitled Carnegie v. Ronan, and bearing County Clerk's Index No. 7312-1970, and also to enjoin the plaintiffs in said action, in which proceeding said plaintiffs cross-moved to join the Governor of the State of New York as a party and said Justice cross-moved to dismiss the proceeding upon objections in point of law. Petition dismissed on the merits and cross motions dismissed as academic, without costs. The action in question was commenced by 20 individuals, claiming to be employees of the New York City Transit System or persons using its facilities, against the petitioners in this proceeding, namely, William J. Ronan, the Metropolitan Transit Authority and the New York City Transit Authority. The plaintiffs in the action sued individually and on behalf of other persons similarly situated, alleging that the defendants knowingly and negligently used and provided defective and dangerous equipment and facilities in the transit system. Judgment was asked permanently enjoining the defendants from knowingly and negligently using defective and dangerous equipment. At the commencement of the action a motion was made for a temporary injunction. The motion was heard before the respondent Mr. Justice BROWN. He denied the motion but set the case for trial. On the day set for trial the defendants moved to dismiss the complaint for lack of jurisdiction. Decision was reserved, with the right granted to renew the motion at the trial. The trial was adjourned for one week. The petitioners now come before this court asking that a prohibition be issued against Mr. Justice BROWN on the ground he is acting in excess of his jurisdiction. Prohibition is an extraordinary form of relief for unusual cases. It is resorted to not to correct errors, but in aid of substantial justice and to forbid exercise of unauthorized powers. It is only justified when there is no redress by ordinary proceedings at law or equity ( Matter of Lyons v. Goldstein, 290 N.Y. 19; Matter of Baltimore Mail S.S. Co. v. Fawcett, 269 N.Y. 379; Matter of Schuyler v. State Univ. of N.Y. at Albany, 31 A.D.2d 273). The petitioners do not allege that the Supreme Court is without subject-matter jurisdiction. Rather they allege that the court is acting in excess of its jurisdiction. The thrust of the petitioners' argument is that the relief proposed would frustrate the legislative purpose of giving the Transit Authority sole responsibility for operating the subway system of New York City (Public Authorities Law, §§ 1201, 1202). We feel this objection is premature. Until the issues are more fully developed in the action it is not clear whether Justice BROWN would have to act in excess of his jurisdiction or even what specific relief might be granted. It would be speculative at this time to declare that Justice BROWN might provide relief in excess of his jurisdiction. The petitioners retain their right to renew the jurisdictional issue as the facts develop at trial. Munder, Acting P.J., Martuscello, Kleinfeld, Brennan and Benjamin, JJ., concur.