Estate of Goldberg v. Roth

—Judgment, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about June 16, 1994, which, upon granting respondents’ motions to dismiss the petition brought pursuant to CPLR article 78 seeking, inter alia, the annulment of an order of Surrogate’s Court, New York County appointing a guardian ad litem, denied petitioners’ application and dismissed the proceeding, unanimously affirmed, with costs. 455 The IAS Court properly determined that an article 78 proceeding in the Supreme Court was an inappropriate vehicle for seeking the relief requested herein. The proper procedure to follow to challenge the Surrogate’s Court determination would have been to take an appeal to this Court of the Surrogate’s denial of petitioners’ motion to vacate the appointment of the guardian (see, e.g., Matter of Sommer, 178 AD2d 480). To the extent that petitioners sought relief in the nature of mandamus on this issue, their argument is misplaced, since the Surrogate cannot be commanded to exercise discretionary functions in a prescribed manner (Matter of Goldstick v Lambert, 161 AD2d 503, 504). There is no basis to grant relief on petitioners’ request for an order disqualifying Surrogates Roth and Preminger. We have considered petitioners’ remaining contentions and find them to be without merit. Concur—Sullivan, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.