People v. Conway 62 A.D.2d 1107

Application by petitioners pursuant to CPLR article 78, to vacate ex parte order to show cause granted by the respondent Justice of the Supreme Court on April 24, 1978. Although brought in the form of an article 78 proceeding, we treat this application as a motion pursuant to CPLR 5704 (subd [a]) which empowers the Appellate Division to vacate orders of the Supreme Court granted without notice to the adverse party. While such power should be exercised by this court only in unusual circumstances (see Matter of Willmark Serv. System, 21 AD2d 478; 7 Weinstein-Korn-Miller, NY Civ Prac, par 5704.04), we deem the instant case, which concerns ongoing criminal prosecutions by the Statewide Organized Crime Task Force, to be a proper one in which to act. Turning to the order to show cause in question, we note initially that the stay contained therein was improperly granted since the required notice was not given to the petitioners (Matter of McArdle, 41 AD2d 401). More importantly, the Supreme Court was without authority to entertain this matter which, in essence, seeks relief in the nature of prohibition against an Acting Supreme Court Justice and which, as defendants’ attorneys admit, should have been commenced in this court in the first instance (CPLR 506, subd [b]; see Matter of Snee v County Ct. of County of Cayuga, 31 AD2d 303, 308). These considerations alone would justify the granting of the instant motion. We would add, however, that we disagree with defendants’ substantive argument that this court could not delegate authority to the Third District Administrative Judge to make the temporary assignment here in issue (see 22 NYCRR 840.3). Such a delegation of authority, sanctioned by section 216 of the Judiciary Law is proper (cf. Matter of Seidenberg v County Ct. of County of Rockland, 34 NY2d 499, 506) and in our opinion is not violative of article VI (§26, subd i) of the State Constitution. Also without merit is defendants’ contention that the temporary assignment of the Acting Supreme Court Justice to these cases could not exceed 30 days (see 22 NYCRR 840.3, final ordering paragraph). *1108Motion granted, without costs. Mahoney, P. J., Greenblott, Kane, Main and Mikoll, JJ., concur.