Opinion
December 6, 1973
Present — Goldman, P.J., Marsh, Witmer, Cardamone and Simons, JJ.
Application denied and proceeding dismissed, without costs. Memorandum: Petitioners are not entitled to the relief sought under CPLR 7803 (see Matter of Finnerty v. McDowell, 36 A.D.2d 900). The record does not demonstrate that Justice Moore in Special Term failed to perform a duty enjoined upon him by law, that he proceeded without or in excess of jurisdiction or that his determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary or capricious or an abuse of discretion. A determination as to the propriety of a transfer of individual petitioners to the detention facilities provided in Erie County can better be made when the imminence of trial of various indictments can be shown. As correctly pointed out by Justice Moore in his decision and order of September 27, 1973, the denial to petitioners of the relief sought does not preclude the individual petitioners from making application to Special Term for an order that the individual be transferred to the Erie County Jail.