In the Matter of Loren Benedict, Petitioner, v. Charles T. Major, as Justice of Supreme Court of County of Onondaga, et al., Respondents

In the Matter of Loren Benedict, Petitioner, v Charles T. Major, as Justice of Supreme Court of County of Onondaga, et al., Respondents. [715 NYS2d 677] [MAJORITY] —Proceeding unanimously dismissed without costs. Memorandum: Petitioner commenced this original CPLR article 78 proceeding in our Court seeking to prohibit respondent County of Onondaga Sheriffs Department (Sheriffs Department) from enforcing an order of respondent Honorable Charles T. Major, Justice of the Supreme Court, directing the removal of a vehicle known as the “Orbiter” from petitioner’s property until such time as there has been a judicial determination of the validity of petitioner’s garage-man’s lien. Petitioner also sought to compel Justice Major to rescind so much of his amended order as would have the effect of destroying petitioner’s alleged property interest in the “Orbiter.” After this proceeding was commenced, petitioner stipulated to removal of the “Orbiter” from his property upon terms that would protect the indebtedness evidenced by the garageman’s lien. Therefore, this proceeding is moot. In addition, because petitioner has not prevailed in an action or proceeding to vindicate his civil rights, he is not entitled to an award of attorney’s fees pursuant to 42 USC § 1988 (see, Matter of Johnson v Blum, 58 NY2d 454; Stevenson v City of Rome [appeal No. 1], 237 AD2d 946, appeal dismissed 90 NY2d 844). (Original Proceeding Pursuant to CPLR art 78.) Present— Pigott, Jr., P. J., Hayes, Hurlbutt, Balio and Lawton, JJ.