Opinion
November 29, 1993
Appeal from the Supreme Court, Nassau County (McCaffrey, J.).
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; Matter of Sans v Doyle, 175 A.D.2d 670; Matter of Sharpton v Turner, 169 A.D.2d 947; Matter of Venture Mag. v White, 103 A.D.2d 450; Matter of Kahn v Backer, 21 A.D.2d 171). 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; Matter of Jacobs v Altman, 69 N.Y.2d 733; Matter of Savastano v Prevost, 66 N.Y.2d 47; Matter of Molea v Marasco, 64 N.Y.2d 718).
Moreover, the petitioner's underlying legal argument (i.e., that she has an inherent right to appear and participate in the proceeding in Surrogate's Court notwithstanding her repeated refusal to file an affidavit of standing with that court pursuant to SCPA 402), was previously advanced and rejected in one of her prior appeals to this Court (see, Matter of Sommer, 179 A.D.2d 762).
The instant appeal is so lacking in merit that it can only be characterized as frivolous within the meaning of 22 NYCRR 130-1.1. The legal argument which the petitioner presently advances has repeatedly been rejected both by the Surrogate and by this Court in a previous appeal decided almost two years prior to the oral argument of the instant matter (see, Matter of Sommer, supra). Thus, the petitioner and the counsel for both parties 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. Mangano, P.J., Sullivan, O'Brien and Ritter, JJ., concur.