Article 78s Against Sitting Judges – Choose Your Forum Carefully
Matter of Tonawanda Seneca Nation v Noonan,___ NY3d___, 2016 NY Slip Op 04974 
The ultimate issue here will be a challenge to Surrogate Noonan’s jurisdiction to determine disputes over tribal lands arising from the probate of the will of a tribal member. That will have to await another day, however, since the Seneca Nation commenced their Article 78 proceeding in the Appellate Division and not the Supreme Court. The Court of Appeals held here that an Article 78 against a Surrogate must be commenced in the Supreme Court, even where the Surrogate in question also wears a County Court robe. Accordingly, the Appellate Division lacked jurisdiction over the proceeding and properly dismissed it.
Supreme Court is, of course, the appropriate forum for most Article 78s. Even where the case involves issues that must ultimately be determined by the Appellate Division, the proceeding should normally begin in Supreme, which will effect the transfer itself after determining the issues within its jurisdiction. (CPLR 7804[g])
Among the limited class of cases which should begin directly in the Appellate Division are those against Supreme and County Court judges. (CPLR 506[b]) As to Supreme Court Justices, the reason for this is evident: a Supreme Court Justice should not be placed in the position of passing on the actions of another Justice. As to County Court judges, the reason is murkier, but as explained by the Court of Appeals the legislative history shows a reluctance to have a Supreme Court Justice, with primarily civil jurisdiction, review the actions of a County Court Judge, whose jurisdiction is primarily criminal.
In any event, notably absent from the list of proceedings directly commenced in the Appellate Division are those against Judges of the Surrogate’s Court. Surrogate Noonan also sits as a Judge of the County Court, but that doesn’t matter. Venue for the Article 78 against a multi-robe judge depends on the robe he or she was wearing when the challenged action was taken, and here that means Judge Noonan was wearing his Surrogate’s Court robe. Venue was in the Supreme Court, and the Appellate Division properly dismissed the proceeding.
Parenthetically, may I note that I find this justification incomprehensible. Most of my experience has been with the Supreme Court in Queens County, where Supreme Court Justices exercise both civil and criminal jurisdiction, and are in fact transferred from Civil to Criminal Terms and back, at the will of the court administrators. There is no County Court. A Supreme Court Justice is assumed to be capable of applying the totality of the law, whether or not there is also a County Court in the Justice’s home county. Why shouldn’t a Supreme Court Justice be fully capable of passing on the actions of a County Court Judge? They are not, after all, judges of the same Court. If the difficulty is to be found in the coordinate jurisdiction of the Supreme Court and the County Court, Supreme Court and the Surrogate’s Court likewise have coordinate jurisdiction. I have noted elsewhere my dismay at the pointlessly fractured nature of our supposedly Unified Court System and the unnecessary procedural issues it engenders, and here is another instance of it.