By Notice of Petition and Petition, Petitioners/tenants commenced this Article 78 proceeding seeking an order from this court: (1) prohibiting Judge Milin from denying Petitioners a jury trial; (2) prohibiting Judge Milin from hearing , determining and granting any relief in the proceeding that should be tried by a jury; (3) prohibiting Judge Milin from reversing the ruling of Judge Schreiber; and (4) prohibiting Judge Milin from replacing a civil action with a summary proceeding. Respondent Maria Milin cross-moves for an Order pursuant to CPLR 3211 and 7804, dismissing the Petition.

Petitioners are the tenants/Respondents in PWV Acquisition LLC v. Maddox, L&T Index no. 65683/05, a non-payment proceeding in the Civil Court of the City of New York, County of New York.

Since August 1, 1975, Petitioners have been the tenants of apartment 7C located at 392 Central Park West, New York, New York. In or about June 2001, Respondent/landlord PWV commenced a holdover proceeding under L&T Index No. 80265. After a trial in October 2002, the tenants prevailed.

In 2004, the landlord PWV, commenced a second summary proceeding under L&T Index No. 52828 claiming chronic non-payment of rent. After motion and cross-motion for summary judgment, by [*2]Decision and Order dated May 21, 2004, the Honorable Michelle D. Schreiber, Judge of the Civil Court, County of New York, granted tenants' cross-motion and dismissed the proceeding finding that the landlord had not properly served a demand for back rent. The landlord appealed from the May 21, 2004 Decision and Order to the Supreme Court Appellate Term, First Department. The Appellate Term affirmed the lower court's decision. During the pendency of that appeal, the landlord moved the Appellate Term for leave to commence a non-payment proceeding in the Housing Court without prejudice to its rights in the appeal. The Appellate Term granted the landlord's application for interim relief on January 13, 2005. Landlord PWV commenced a non-payment proceeding on or about March 28, 2005, Index No. 065683, in Civil Court of the County of New York seeking rent from July 2002 through March 2005 in the amount of $32,495.23. By Decision and Order dated November 18, 2005, Judge Milin directed the parties to appear in Housing Part A so that a trial date could be set to decide the issues regarding the failure to provide a renewal lease, laches and/or stale rent and how much rent had been paid in whole or in part.

By Notice of Petition and Petition, the tenants commenced this Article 78 proceeding seeking an order from this court: (1) prohibiting Judge Milin from denying tenants a jury trial; (2) prohibiting Judge Milin from hearing, determining and granting any relief in the proceeding that should be tried by a jury; (3) prohibiting Judge Milin from "reversing" the ruling of Judge Schreiber; and (4) prohibiting Judge Milin from "replacing a civil action with a summary proceeding." Tenants' motion must be denied.

Tenants claim that Judge Milin is without the statutory authority to hear and decide any of the matters in dispute in the underlying non-payment proceeding and that she exceeded her authority in issuing the November 18, 2005 Decision and Order.

To the extent that Tenants seek an order from this court vacating the November 18, 2005 Decision and Order, that request must be denied as this Court lacks subject matter jurisdiction to vacate orders of the Civil Court. (Branciforte v. Spanish Naturopath Society, 217 AD2d 619 [2nd Dept 1996]). A review of such an order can be had only by direct appeal or by leave to the Appellate Term. (22 NYCRR §§640.1 and 730.1(b)). Assuming arguendo that this court had jurisdiction of the issues presented, the court would still have to dismiss the Petition.

First, as to tenants argument that Judge Milin acted without jurisdiction, RPAPL §§ 701, 741(5), 745(2) and 753(2), provide that the Civil Court has jurisdiction over summary proceedings to recover possession of real property located in New York City, to remove tenants and to render judgment for rent due. Therefore, [*3]Judge Milin acted within her authorized power and with jurisdiction.

Moreover, and with respect to Petitioners' argument that Judge Milin should be (1) prohibited from denying Petitioners a jury trial; (2) prohibited from granting relief in a proceeding that should be tried by a jury; (3) prohibited from reversing the ruling of Judge Schreiber; and (4) prohibited from replacing the civil action with a summary proceeding, the court notes that the remedy of prohibition lies only when there is a clear legal right to the relief requested and only when a court, in cases involving challenges to judicial authority, acts or threatens to act either without jurisdiction or in excess of its authorized powers. (See CPLR § 7804 (2); Matter of Lungren v. Kane, 88 NY2d 861 [1996]). Even then, prohibition does not issue as of right, it is within the court's discretion to decide whether the remedy of prohibition is appropriate. The court makes the decision after considering factors such as the gravity of the harm caused by the alleged excess of power, the availability of an adequate remedy on appeal at law or equity and the remedial effectiveness of such writ to the extent that it would furnish more complete relief. (LaRocca v. Lane, 37 NY2d 575, 579 [1975]). "Errors of law, which of course may be verbalized, but incorrectly, as excess of jurisdiction or power, are not to be confused with a proper basis for using the extraordinary writ." (State v. King, 36 NY2d 59 at 62 [1975]). In this proceeding, prohibition does not lie because the tenants are unable to demonstrate a clear legal right to relief through prohibition. Judge Milin's decision did not reverse the May 21, 2004 Decision and Order of Judge Schreiber. That decision concerned a holdover proceeding commenced by landlord PWV. Judge Schreiber's decision did not impact PWV's ability to bring a non-payment proceeding. Additionally, prohibition is not available where its proponent has an adequate alternative remedy at law. The appropriate remedy to review any claimed error in a Civil Court order or judgment is through the appellate process. (McGuire v. Spires, 214 AD2d 402 [1st Dept 1995]; also 22 NYCRR §§640.1 and 730.1(b)also NY Const. Art. 6 § 8). Therefore, a writ of prohibition will not lie and the instant petition must be dismissed. Accordingly it is

ORDERED that Petitioners' motion is denied in its entirety; and it is further

ORDERED that Respondent, Maria Milin's, cross-motion for an Order pursuant to CPLR 3211 and 7804, dismissing the petition is granted.

This memorandum opinion constitutes the decision and order of the Court.

Dated:

____________________________ [*4]

HON. WALTER B. TOLUB, J.S.C.