Opinion
February 2, 1987
Appeal from the Supreme Court, Orange County (Ingrassia, J.).
Ordered that the judgment is affirmed, with costs.
We conclude that the Supreme Court properly dismissed the proceeding. The petitioners claim that the Commissioner of Personnel of the County of Orange is without jurisdiction to review the appeal of Harry Owen from the determination of the Police Commissioner of the Town of Wallkill discharging him from his position with the Town of Wallkill's police force. This claim is premised upon Owen's alleged failure to serve and file his notice of appeal pursuant to Civil Service Law § 76. Determination of whether the extraordinary remedy of prohibition is available in a particular case lies within the court's sound discretion (see, Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 147, cert denied 464 U.S. 993; Schachter v. Tomaselli, 105 A.D.2d 779). In the exercise of its discretion, the court should consider such factors as the adequacy of other procedures to correct the alleged error or whether there is an adequate ordinary remedy at law or in equity (Matter of Morgenthau v Erlbaum, supra; Matter of Nicholson v. State Commn. on Judicial Conduct, 50 N.Y.2d 597, 606). In the instant matter, prohibition does not lie as the petitioners may seek review of their claim of jurisdictional defects through the administrative appeal process before the Commissioner of Personnel of the County of Orange (see, Schachter v. Tomaselli, supra). Therefore, the judgment appealed from did not involve an abuse of discretion. Mollen, P.J., Thompson, Weinstein and Rubin, JJ., concur.