Opinion
May 23, 1973.
Kohn, Bookstein Karp ( Richard Kohn of counsel), for Edward C. McArdle and another, petitioners.
Schrade, Morris Roche ( Robert P. Roche of counsel), for James J. Candlen, Jr., and another, petitioners.
Joseph Fisch for respondent.
Motion by Temporary State Commission of Investigation to vacate a temporary stay, granted ex parte by a Justice of the Supreme Court, by order to show cause in an article 78 proceeding which seeks judgment prohibiting the commission from conducting further hearings and investigations of matters concerning certain officers of the Police Department of the City of Albany. Motion granted and stay vacated, without costs. We deem the granting of the order to show cause an abuse of discretion. The stay broadly restrains the commission from any further activities pending hearing of the proceeding and, obviously, will have a crippling effect on the commission's investigation. As we have held several times, stays which restrain State officials from the performance of their official duties may not be granted ex parte. ( Matter of Murray v. Tofany, 36 A.D.2d 665; Matter of Goebel v. Tofany, 39 A.D.2d 818.) We reject the notion that the members of the Temporary State Commission of Investigation are not State officials. Moreover, the granting of any stay in this proceeding would be an abuse of discretion as the only contention urged in the petition for prohibition has been passed upon adversely by the Court of Appeals. ( Matter of Cronin v. Temporary New York State Comm. of Investigation, 13 N.Y.2d 941.) We therefore reiterate the practice to be followed in this Department with respect to stays. State officials shall not be stayed or enjoined by ex parte orders.
HERLIHY, P.J., STALEY, JR., GREENBLOTT, MAIN and REYNOLDS, JJ., concur.
Motion granted and stay vacated, without costs.