IN RE: Kimberly AUSTIN (2018)

Judgment (denominated an order), Supreme Court, New York County (Barbara A. Jaffe, J.), entered March 21, 2017, which denying the petition seeking, inter alia (1) a writ of prohibition against the enforcement of an order of Civil Court, New York County (Housing Part) (Maria Milin, J.), entered on or about February 18, 2016, which granted defendant landlords' motion for re-executing a warrant of eviction and (2) restraining landlords from executing the warrant of eviction, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in denying the writ of prohibition (see Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 435, 654 N.Y.S.2d 705, 677 N.E.2d 276 [1997];  Matter of Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d 783, 786, 604 N.Y.S.2d 541, 624 N.E.2d 678 [1993] ).  Housing Court's February 2016 authorization of re-execution of the eviction warrant (following exhaustion of numerous attempts to appeal the December 2013 judgment awarding possession to landlord) was lawful and not in excess of its jurisdiction (see RPAPL 749[1] ).  Additionally, no writ of prohibition would lie even if Housing Court's February 2016 order were somehow defective, since petitioners could have obtained review of the order via ordinary direct appeal.  Indeed, petitioners make clear that they consciously eschewed a direct appeal, in favor of a writ of prohibition, in order to avoid appealing the underlying order to the Appellate Term. We note that the ultimate issue of landlord's right to possession of the apartment was finally decided by Appellate Term in its December 2013 judgment and is res judicata (see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ). We have considered petitioners' remaining contentions, and find them unavailing.

M–1977—In re Kimberly Austin v. Maria Milin, 161 A.D.3d 675, 78 N.Y.S.3d 308, 2018 WL 2406123

Motion to expand appendix denied.