Opinion
No. 11412–2013.
06-12-2014
In the Matter of Santino TOMAINO and Arthur Graseck, Jr., Petitioners, For a Judgment under Article 78 of the CPLR v. John M. CZYGIER, Jr., Surrogate of Suffolk County, New York, Respondent.
Arthur Graseck, Jr., Esq., Oakdale, Attorney for Petitioners. Eric T. Schneiderman, Attorney General, Hauppauge.
Arthur Graseck, Jr., Esq., Oakdale, Attorney for Petitioners.
Eric T. Schneiderman, Attorney General, Hauppauge.
Opinion
PETER H. MAYER, J.
Upon the reading and filing of the following papers in this matter: (1) Notice of Petition by the petitioners, dated May 19, 2013, and supporting papers; (2) Notice of Motion by the respondent, dated May 29, 2013, and supporting papers; (3) Affirmation in Opposition by the petitioners, dated June 10, 2013, and supporting papers; and now
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the motion (002) by the respondent in this Article 78 proceeding, which seeks an order dismissing the petition pursuant to CPLR 3211(a)(7) and CPLR 7801, is hereby granted, and the petition (001) is hereby dismissed; and it is further
ORDERED that for the reasons set forth herein, Arthur V. Grasek, Jr., Esq. is sanctioned in the amount of $5,000.00, payable to the Lawyers' Fund for Client Protection; and it is further
ORDERED that counsel for the respondent shall promptly serve a copy of this Order upon counsel for the petitioners via First Class Mail, and shall promptly thereafter file the affidavit of such service with the County Clerk.
In this Article 78 proceeding in the nature of mandamus, the petitioners seek an order directing respondent, Hon. John M. Czygier, Surrogate of Suffolk County, to sign an Order to Show Cause that Judge Czygier previously declined to sign. In the Surrogate's Court matter of Wilder and Field, as co-executors of the Estate of Guarraci v. Tomaino, Surrogate Court File No. 2110 P 2004, Judge Czygier issued a January 9, 2007 Decision granting summary judgment to the plaintiffs and setting aside the transfer of a deed to defendant Tomaino (petitioner in this proceeding). That Decision was affirmed on appeal by the Appellate Division, Second Department (see Wilder v. Tomaino, 52 AD3d 700, 860 N.Y.S.2d 184 [2d Dept 2008] ), and the Court of Appeals denied leave to appeal (see Wilder v. Tomaino, 11 NY3d 709, 868 N.Y.S.2d 602 [2008] ).
Thereafter, Judge Czygier conducted hearings on the issue of damages and sanctions to be imposed. As a result of those hearings, Judge Czygier issued a Decision, dated November 29, 2010, awarding damages against Tomaino and sanctions against attorney Arthur Grasek, a nonparty in that action. The November 29, 2010 Decision was upheld by the Appellate Division, Second Department (see Wilder v. Tomaino, 100 AD3d 633, 953 N.Y.S.2d 284 [2d Dept 2012] ). Petitioner Grasek then presented an Order to Show Cause to Judge Czygier, seeking to vacate the Judge's January 9, 2007 Decision. Judge Czygier declined to sign the Order to Show Cause. Instead, he issued a Decision, dated January 31, 2013, in which he noted that the “[Surrogate's Court] is without authority to vacate, modify or correct its own order/decree after the decision/decree has been affirmed by a higher court.” It is Judge Czygier's January 31, 2013 Decision that petitioners Tomaino and Grasek seek to vacate in this Article 78 proceeding.
Where, as here, a judicial officer refuses to sign an Order to Show cause, it is an exercise of discretion which is not subject to review by mandamus in an Article 78 proceeding (see Greenhaus v. Milano, 242 A.D.2d 383, 661 N.Y.S.2d 664 [2d Dept 1997] ). Writs of mandamus, prohibition, and certiorari are not proper vehicles to review an appealable order or to correct an alleged error of law (see Branciforte v. Spanish Naturopath Society, Inc., 217 A.D.2d 619, 629 N.Y.S.2d 465 [2d Dept 1995] ). The proper remedy, if one is aggrieved by a court's decision, is to appeal the final order or judgment to the proper appellate court rather than to attack it collaterally by way of mandamus (Id.; Branciforte v. Spanish Naturopath Society, Inc., supra ). Indeed, the appropriate vehicle for challenging the propriety of a Surrogate's determination, for example, one that denies a petitioner's application to submit papers in a proceeding pending before that Surrogate, is a direct appeal from that order (see CPLR 7801 ; Sommer v. Harrington, 198 A.D.2d 508, 604 N.Y.S.2d 196 [2d Dept 1993] ).
In his November 29, 2010 post-hearing Decision, Judge Czygier wrote about Mr. Grasek, that “[i]n addition to again raising issues which had previously been determined by this court and attempting to attach to his papers items he was not allowed to put into evidence during the hearing of this matter, Attorney Grasek argues that his zealous representation of his clients and loss on appeal does not constitute inappropriate or frivolous conduct.” Judge Czygier disagreed with attorney Grasek, found Mr. Grasek's actions frivolous, and issued sanctions against him in the amount of ten thousand dollars ($10,000.00). The Appellate Division, Second Department affirmed that Decision, finding that Judge Czygier “providently exercised [his] discretion in determining that the conduct of ... Arthur Grasek, Jr. was frivolous, and in directing [him] to pay a sanction in the sum of $10,000 to the Lawyers' Fund for Client Protection” (Wilder v. Tomaino, 100 AD3d 633, 634, 953 N.Y.S.2d 284, 286 [2d Dept 2012] ).
Completely undisclosed by the petitioners in the proceeding before this Court is the fact that prior to submitting the instant Article 78 petition by Notice of Motion, the petitioners submitted an Article 78 petition by Order to Show Cause to Hon. John B. Collins, seeking the same relief sought by petitioners here. In respondent's motion to dismiss, counsel for the respondent provides a copy of Justice Collins' May 13, 2013 Order in which he declined to sign Mr. Grasek's prior petition by Order to Show Cause for the very same relief sought here. In declining to sign that Order to Show Cause, Justice Collins issued a Short Form Order, dated May 13, 2013, stating:
“[A]n Article 78 proceeding is not the proper remedy for the relief sought. The proper remedy is contained within CPLR § 2221, to reargue, and to be brought before the same Judge [who has] previously declined to execute said application, and/or to appeal. Moreover, a Judge is not permitted to review another Judge of the original determination's decision (see, CPLR § 2217 ).”
Notwithstanding the clear language of Justice Collins' Order, Mr. Grasek submits to this Court the same petition by Notice of Motion, but fails to disclose his prior application by Order to Show Cause to Justice Collins. In his Affirmation in Opposition to respondents' motion to dismiss, Mr. Grasek does not deny his failure to disclose that prior application and does not even offer an explanation or excuse for such failure.
Notably, 22 NYCRR § 130–1.1A(b) states that “[b]y signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (1) the presentation of the paper or the contentions therein are not frivolous as defined in section 130–1.1(c)....” In relevant part, 22 NYCRR § 130–1.1(c) states that:
[C]onduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
This Court echoes the findings of Justice Collins, which attorney Grasek failed to disclose, that “an Article 78 proceeding is not the proper remedy for the relief sought ... The proper remedy is contained within CPLR § 2221, to reargue, and to be brought before the same Judge [who has] previously declined to execute said application, and/or to appeal. Moreover, a Judge is not permitted to review another [Judge's Decision].” The Court also finds that attorney Arthur Grasek's presentation to this Court of a Petition by Notice of Motion, which seeks the very same relief (with the very same Petition and Index Number) that had already been denied by Order of Justice Collins, and his failure to disclose such prior Order, constitutes frivolous conduct as defined by 22 NYCRR 130–1.
Based upon the foregoing, the respondents' motion to dismiss is granted and the petition is dismissed. In addition, Mr. Grasek is hereby sanctioned in amount of $5,000.00, payable to the Lawyers' Fund for Client Protection.
This constitutes the Order and Judgment of the Court.