Hodge v. LoRusso

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 NY2d 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 AD2d 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. (Appeal from Judgment of Supreme Court, Erie County, Mintz, J. — Article 78.) Present — Boomer, J. P., Pine, Lawton, Davis and Doerr, JJ.