Matter of Diane M. Weeden v Honorable John J. Ark

Matter of Weeden v Ark 2003 NY Slip Op 20060 [2 AD3d 1280] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

In the Matter of Diane M. Weeden, Petitioner,
v
John J. Ark, as Justice of the Supreme Court, Respondent.

—Original CPLR article 78 proceeding commenced in this Court on April 24, 2003, seeking a writ of mandamus.

It is hereby ordered that said petition be and the same hereby is unanimously dismissed without costs.

Memorandum: Petitioner commenced this proceeding, pro se, seeking a writ of mandamus compelling respondent to decide her motion to settle the record on appeal with respect to four underlying actions (see generally Miller v Lanzisera, 273 AD2d 866, 867 [2000], appeal dismissed 95 NY2d 887 [2000], rearg denied 96 NY2d 731 [2001]). Contrary to the contention of petitioner, respondent did in fact decide her motion by denying it. While "[e]very appellant has a clear legal right to settlement of the record" (Matter of Lavar C., 185 AD2d 36, 39 [1992]), that principle presupposes that an appellant has submitted a proposed record in compliance with CPLR 5526 and 22 NYCRR 1000.4, and petitioner failed to do so here. Present—Pigott, Jr., P.J., Pine, Scudder, Gorski and Lawton, JJ.