Sommer v. Harrington

• Decision Date: 29 November 1993
• Citation: 198 A.D.2d 508,604 N.Y.S.2d 196
• Parties: In the Matter of Laura SOMMER, Appellant, v. Raymond HARRINGTON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 196

604 N.Y.S.2d 196

198 A.D.2d 508

In the Matter of Laura SOMMER, Appellant, v. Raymond HARRINGTON, Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 29, 1993.

Peter R. Newman, P.C., Hauppauge (Anthony Cummings, of counsel), for appellant.

Robert Abrams, Atty. Gen., Mineola (Robert K. Drinan, of counsel), for respondent.

Before MANGANO, P.J., and SULLIVAN, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondent Acting Surrogate of Nassau County to accept and consider papers in a proceeding pending in the Surrogate's Court, Nassau County, the petitioner appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Nassau County (McCaffrey, J.), entered May 10, 1991, as granted the respondent's motion to dismiss the proceeding.

ORDERED that the judgment is affirmed insofar as appealed from, with costs; and it is further,

ORDERED that the petitioner, a representative of Peter R. Newman, P.C., and the counsel for the respondent, are directed to appear before this court on Wednesday, December 15, 1993, at 12:00 Noon, to be heard upon the issue of the imposition of appropriate sanctions and costs, if any, pursuant to 22 NYCRR 130-1.1.

The Supreme Court acted properly in dismissing the instant proceeding. The appropriate vehicle for challenging the propriety of the Acting Surrogate's determination, made in an order dated April 4, 1991, denying the petitioner's application to submit papers in a proceeding pending before him, was a direct appeal from that order (see, CPLR 7801; Matter of Veloz v. Rothwax, 65 N.Y.2d 902, 493 N.Y.S.2d 452, 483 N.E.2d 127; Matter of Sans v. Doyle, 175 A.D.2d 670, 573 N.Y.S.2d 956; Matter of Sharpton v. Turner, 169 A.D.2d 947, 565 N.Y.S.2d 255; Matter of Venture Mag. v. White, 103 A.D.2d 450, 480 N.Y.S.2d 219; Matter of Kahn v. Backer, 21 A.D.2d 171, 249 N.Y.S.2d 572). In any event, the petitioner failed to demonstrate a clear legal right to the extraordinary remedy of either a writ of prohibition or mandamus to compel, since the Surrogate's refusal to accept her papers was not in excess of his authority, nor did it violate a duty enjoined upon him by law to perform a purely ministerial act (see, Matter of Crain Communications v. Hughes, 74 N.Y.2d 626, 541 N.Y.S.2d 971, 539 N.E.2d 1099; Matter of Jacobs v. Altman, 69 N.Y.2d 733, 512 N.Y.S.2d 361, 504 N.E.2d 688; Matter of Savastano v. Prevost, 66 N.Y.2d 47, 495 N.Y.S.2d 6, 485 N.E.2d 213; Matter of Molea v. Marasco, 64 N.Y.2d 718, 485 N.Y.S.2d 738, 475 N.E.2d 109).

Moreover, the petitioner's underlying legal argument i.e., that she has an inherent right to appear and...