Suarez v. McCooe

CPLR article 78 proceeding to compel respondent Justice to decide a motion made on behalf of petitioner, the defendant in an action pending in the Supreme Court, New York County, denied, and the petition dismissed, without costs.

Petitioner made a motion for temporary maintenance and child support in an action pending in the Supreme Court, New York County, returnable on April 30, 1987. On the same day, the respondent Justice denied the motion as jurisdictionally defective, finding it had not been properly served. The memorandum decision and order (one paper) was filed in the office of the County Clerk on May 7, 1987. On May 13, 1987, the petitioner submitted an order to show cause, requesting reargument, to the respondent Justice who declined to sign the order, noting "application for leave to reargue is denied.” The respondent Justice also, subsequently, filed a supplemental memorandum further detailing the ground for his original decision.

From the foregoing, it is clear that the motion complained of was promptly decided by the court. Had the petitioner been so advised, she could have appealed that decision. In any *304event, there is no bar to her renewing the motion upon proper service of her moving papers. Concur — Sandler, J. P., Milonas, Rosenberger, Ellerin and Smith, JJ.