Opinion
March 13, 1992
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Boomer, J.P., Pine, Lawton, Davis and Doerr, JJ.
Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed this CPLR article 78 proceeding against two Supreme Court Justices because Supreme Court lacked subject matter jurisdiction over any proceeding brought against them (see, CPLR 506 [b] [1]; Matter of Nolan v Lungen, 61 N.Y.2d 788). Supreme Court properly dismissed the proceeding against the remaining respondents because petitioner improperly utilized an article 78 proceeding to seek review of issues which could have been raised on direct appeal (see, Matter of Sans v Doyle, 175 A.D.2d 670).
By failing to brief any issue concerning the propriety of the court's order settling the record on appeal, petitioner has waived review of that order. In any event, Supreme Court correctly concluded that correspondence that was not before it on respondents' motion to dismiss was not properly included in the record on appeal. The documents excluded from the record by Supreme Court have not been considered in the resolution of this appeal.