Opinion
February 9, 1989
Respondent revoked petitioner's pistol permit on December 16, 1987 following a hearing at which there was testimony, although contradicted, that petitioner held a loaded .38-caliber handgun to his former wife's temple in a dangerous and threatening manner. Petitioner filed a notice of appeal dated February 4, 1988 and thereafter, in August 1988, commenced this CPLR article 78 proceeding to review the revocation of his pistol permit. We denied respondent's motion to dismiss the proceeding as untimely, without prejudice to the issue being raised upon argument.
There must be a dismissal. The appropriate procedure for review of an order revoking a pistol permit is not by direct appeal from the determination but, rather, by commencement of a CPLR article 78 proceeding (Matter of Ehrlich, 99 A.D.2d 545; see, Matter of Boissy v Clyne, 71 A.D.2d 701, appeal dismissed 48 N.Y.2d 974). The instant article 78 proceeding, clearly commenced more than four months after the determination became final and binding upon petitioner, is untimely (CPLR 217; see, Matter of Boissy v Clyne, supra). Additionally, a proceeding against a Judge of the Surrogate's Court should be commenced in Supreme Court and is improperly commenced in this court in the first instance (Matter of Juracka v Severson, 115 A.D.2d 102, lv denied 67 N.Y.2d 603; see, CPLR 506 [b]; Matter of Nolan v Lungen, 61 N.Y.2d 788). Moreover, were we to reach the merits, we would uphold respondent's determination which was supported by substantial evidence in the record and was neither arbitrary nor capricious (see, Matter of King v Ingraham, 113 A.D.2d 977; Matter of Colin v People, 92 A.D.2d 697).
Petition dismissed, without costs. Mahoney J.P., Kane, Weiss, Mercure and Harvey, JJ., concur.