Mulligan v. Zittell

Motion by respondent granted, without costs, and proceeding commenced by order to show cause dated July 23, 1979 dismissed. By this proceeding, petitioner seeks a judgment pursuant to CPLR article 78, prohibiting the respondent Judge of the Family Court from entertaining a petition for child support on the ground that a matrimonial action previously commenced by petitioner’s wife is presently pending in Supreme Court, Columbia County. Without deciding whether the pendency of this action would prevent the Family Court from entertaining the petition pursuant to subdivision (b) of section 464 of the Family Court Act or whether the remedy of prohibition would be available to petitioner under the circumstances (see, e.g., La Rocca v Lane, 37 NY2d 575, 579), we conclude that the issue need not now be decided in view of the subsequent voluntary discontinuance of the action and the order of Special Term dated September 13, 1979 denying petitioner’s motion to vacate the discontinuance. Greenblott, J. P., Sweeney, Main, Mikoll and Herlihy, JJ., concur.