
    In the Matter of Michael L. Shapiro, Petitioner, v Duncan S. MacAffer, as Village Justice of the Village of Menands, Respondent.
    Supreme Court, Special Term, Albany County,
    May 31, 1979
    APPEARANCES OF COUNSEL
    
      Ungerman & Ackerman, P. C., for petitioner. Mataraso & MacAffer for respondent.
   OPINION OF THE COURT

Edward S. Conway, J.

This is a motion by the petitioner for an order pursuant to CPLR article 78 prohibiting the Honorable Duncan S. MacAffer, Village Justice of the Village of Menands, New York, from continuing to assume jurisdiction in the proceeding pending before said court arising out of an alleged violation of subdivision (b) of section 1180. of the Vehicle and Traffic Law of the State of New York and prohibiting and restraining him from taking any further steps in connection with the said proceeding.

Petitioner contends that a traffic ticket was issued to him by a State trooper which directed him to appear in the Village Court, Village of Menands, on Tuesday, November 28, 1978 at 7:00 p.m. Petitioner further contends that he appeared with counsel as directed; that he and his attorney arrived at about 6:45 p.m. and that they both waited in the area of the courtroom for 45 to 50 minutes and did ascertain that there was no one present in the Justice courtroom and they were advised that the Judge would not appear for the scheduled court appearance. At about 8:00 p.m. the petitioner and his attorney left the court premises.

It is the further contention of the petitioner that by reason of the aforesaid facts Justice MacAffer has been divested of jurisdiction to continue with the case.

Respondent Justice MacAffer contends that petitioner is relying on cases decided under the former Code of Criminal Procedure when the jurisdiction of a Village Justice, when acting in criminal matters, was personal to the Justice and his court was not a continuing court, but was called into being only for the purpose of disposing of individual cases. He further contends that under the Uniform Justice Court Act and the Criminal Procedure Law, a Village Court is now a continuing court and although still a court of limited jurisdiction, the limitations do not apply to the fact of its being a court of special sessions.

Respondent Justice MacAffer further contends that the radical remedy of a writ of prohibition is not in order, nor available to the petitioner under these circumstances, there being no clear showing or any statutory language which indicates that he is not entitled to proceed with the case as a Justice of the Village Court of the Village of Menands.

It is the opinion of this court that there was no proper adjournment and jurisdiction over the person of the petitioner was not acquired and therefore the petitioner is entitled to an order prohibiting the Village Court of the Village of Menands from further proceedings against the petitioner upon the traffic ticket issued to him, which directed him to appear on Tuesday, November 28, 1978 at 7:00 p.m. in the Village Court, Village of Menands, without prejudice, however, to the issuance of a new traffic ticket to the petitioner directing him to appear at some future proper date and time for the said alleged violation of section 1180 of the Vehicle and Traffic Law.  