IN RE: the Application of Devora Shabtai (2026)

The following papers were used on this special proceeding: order to show cause, affidavit, affirmation, petition, and exhibits; various court orders; answer, affirmation, and exhibit; reply affirmation and exhibits; adjournment requests.

Upon the foregoing papers, the Court having heard oral argument on the record  ¹ , and due deliberation having been had thereon, the within CPLR Article 78 special proceeding against Surrogate Bernard J. Graham and other respondents is determined as follows.

Adjournment Denied

Initially it is noted that during oral argument the Court denied petitioner's application to adjourn this special proceeding.² The matter had been adjourned previously.

Moreover, a CPLR Article 78 proceeding is a form of a special proceeding. A special proceeding "is initiated and prosecuted in much the same manner and with the same speed as a motion . . . , and is usually determined in a manner similar to summary judgment" (Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C103:2). "Special proceedings are reserved for limited types of dispute resolution in which speed is desirable" (id.). "A special proceeding is a civil judicial proceeding in which a right can be established or an obligation enforced in summary fashion. Like an action, it ends in a judgment (CPLR 411), but the procedure is similar to that on a motion (CPLR 403, 409). Speed, economy and efficiency are the hallmarks of this procedure." (Vincent C. Alexander, Prac Commentaries, McKinney's Cons Laws of NY, CPLR C401:1.) To further adjourn this matter would frustrate the purpose for which Article 78 special proceedings are commenced: to achieve a speedy, summary result in a dispute concerning which the CPLR specifically permits such a proceeding. Here, petitioner seeks to compel a judge in the New York court system to perform an alleged duty. This definitely warrants a quick disposition, which is precisely what petitioner sought in her papers. An adjournment was not merited.

Background & Relief Sought

Petitioner sought the following relief, as set forth in the order to show she presented, which this Court signed on August 13, 2026:

1. Staying, pursuant to CPLR 7805, the imposition of enforcement of sanctions, filing restrictions, access-to-court restrictions, or other substantial restrictions against Petitioner arising out of the August 4, 2026 order and the August 18, 2026 proceeding, pending determination of this Article 78 proceeding;

2. Prohibiting Respondent Graham from imposing sanctions, filing restrictions, or other substantial restrictions against Petitioner without first providing with specific notice identifying the exact conduct alleged to be sanctionable and a meaningful opportunity to respond;

3. Directing Respondent Graham to determine Petitioner's properly submitted and presently outstanding motions and applications, without directing Respondent as to the substantive outcome of those applications;

4. Directing Respondent Graham to issue a determination concerning Petitioner's application seeking enforcement of the accounting previously directed from former fiduciary Zehavit Michael;

5. Determining whether the threatened sanctions/restrictions procedure is being conducted in accordance with lawful procedure and within Respondent's lawful authority;

6. Granting relief in mandamus pursuant to CPLR 7803(a) to the extent Respondent has failed to perform a nondiscretionary duty to determine matters properly submitted for judicial determination.

7. Granting relief in prohibition pursuant to CPLR 7803(2) to the extent Respondent is proceeding or threatening to proceed in excess of lawful authority by imposing substantial restrictions or sanctions without adequate notice and a meaningful opportunity to be heard;

8. Grating Petitioner such further interim protection as is necessary to preserve the status quo while this Article 78 proceeding is determined;

9. Awarding Petitioner, the costs and disbursements of this proceeding to the extent permitted by law; and

10. Granting such other and further relief as this Court deems just, equitable, and proper.

Underlying petitioner's application to the court to compel Surrogate Graham to take or not take certain actions is a familial dispute concerning ownership of 2118 East 69 Street, Brooklyn, New York ("subject premises"), a property which had been in petitioner's parents' possession for many years. In an email to the Court, petitioner described the situation as follows:

My parents owned the property as tenants by the entirety. My mother survived my father, and I subsequently succeeded to her interest, as supported by the October 28, 2021 conveyance letter (NYSCEF 34-2019-4147).[³ ]

Petitioner's papers submitted in support of the Article 78 special proceeding also describe the relief sought, in pertinent part, as follows:

Rather, I request that properly submitted and outstanding applications be actually determined and that coercive sanctions or filing restrictions not be imposed upon me without lawful notice and an opportunity to respond. Judge Bernard Graham has repeatedly failed to address my motions concerning this fundamental ownership issue. I believe Mr. Yefet and the Public Administrator have similarly disregarded it.

The unauthorized occupants have obtained documents from Surrogate's Court and the Appellate Division and repeatedly used them to claim that I have no legal standing, no ownership rights, and no authority to collect rent. I believe that my sister and her lawyers gave the squatters the documentation to make my life a living hell. THEY MAINTAIN THAT MY FATHER'S Will was invalidated and use that assertion to justify remaining in my home without paying rent while I am forced to pay the utilities, maintenance, and other property expenses. They owe me $171,050 for nonpayment of close to 2 and half years. Judge Graham refuses to address ESTATE INTERFERENCE AND SEVERE HARASSMENTS TOWARD ME THROUGH THIRD PARTY INDIVIDUALS BROUGHT BY MY SISTER.

I have also raised concerns involving Michael Buscarello, Joseph Wolfgang, George Fahmy, Jason Barocas, and Danny Vulpis, whom I understand have been subjects of allegations investigated by Detective Max Lindon. I believe Judge Graham and the Public Administrator have failed to address the continuing harassment and interference with my property.

Anthony Verdino and Joseph Wolfgang allegedly brought discarded mattresses from a junkyard onto the property, contributing to infestations of bedbugs and dust mites. After I removed the mattresses, they allegedly returned them, causing renewed infestation.

On October 26, 2026, I again had to call the NYPD for assistance in shutting off the water valve so that necessary plumbing repairs could proceed. After the officers departed, Anthony Verdino and Joseph Wolfgang allegedly reopened the valve, once again interfering with the repairs. This demonstrates the continuing difficulties I face in maintaining my own property.

The occupants have also allegedly operated the heating system at approximately 90 degrees continuously, causing severe headaches, physical distress, and excessive utility expenses.

I am submitting video recordings dated June 9 and June 20, 2025, which I believe demonstrate Anthony Verdino's intention to have me removed from my home.

Related lawsuits, Case Nos. 58/26 and 12/26, involve disputed Rolex watches. Michael Buscarello has also alleged that my supposed son, "Zachary Shabtai," assaulted him. I DO NOT HAVE A SON.

I further question why sanctions proceedings were pursued when I intended to testify, only for the subpoena seeking my testimony to be withdrawn. Nevertheless, the withdrawn subpoena and sanctions are not the central subject of my Article 78 proceeding.

Your Honor, I believe these individuals are attempting to remove me from my family home, jeopardize my employment with the City of New York, and subject me to repeated criminal accusations while avoiding their financial obligations.

I respectfully request that the Court address the fundamental ownership and estate-jurisdiction issues rather than allowing collateral disputes to overshadow them.

The petition submitted by petitioner adds further various allegations which shed further light on the underlying situation:

a. Petitioner's repeated applications for affirmative relief, including Orders to Show Cause, have allegedly been left unsigned, refused, or not substantively determined;

b. Surrogate has repeatedly compelled Petitioner to account concerning disputed safe-deposit-box assets;

c. the former fiduciary, Zehavit Michael, was herself ordered to account, yet Petitioner contends that comparable enforcement has not been undertaken against her;

d. substantially repetitive turnover and compulsory-accounting applications concerning safe-deposit boxes have continued despite a October 14, 2020 record before Justice Lisa Ottley stating that the safe-deposit-box issue appeared moot because the boxes were empty and closed;

e. Petitioner's recusal motion, NYSCEF 455, did not result in cessation of the challenged proceedings;

f. Petitioner's emergency Orders to Show Cause, including NYSCEF 538, 543, and 544, were allegedly refused or left unsigned;

g. Petitioner thereafter filed motion papers at NYSCEF 546, together with supporting exhibits NYSCEF 547-564; and

h. on August 4, 2026, Judge Graham entered NYSCEF 565, directing Petitioner personally to appear on August 18, 2026, at 10:00 a.m. and warning that "significant and substantial restrictions and/or sanctions" may be imposed.

5. Petitioner maintains that this cumulative procedure has placed her in the position of being threatened with sanctions and restrictions while her own applications seeking enforcement, discovery, accounting, and protection have not received equivalent adjudication.

6. Petitioner therefore sees a stay sufficient to permit review of whether the threatened sanctions procedure complies with law and fundamental requirements of notice and an opportunity to be heard.

The issue of the safe deposit box referenced by Petitioner is amplified later on in petitioner's petition herein. She contends that Zehavit Michael's former attorney, Peter J. Strauss, alleged that the safe deposit box contained 773 stones, at least 358 of which were diamonds worth more than $10 million.

Petitioner's petition further argues that pending applications be determined on the record, rather than left without adjudication, i.e., Surrogate Graham's declination to sign her submitted orders to show cause be placed on the record. Also, that Surrogate Graham's order scheduling a hearing on petitioner's behavior did not specify what her sanctionable conduct was with specificity.

At oral argument, petitioner was asked to describe the relief she sought from the Court. She responded that seeks to have Surrogate Graham determine the issue of ownership of the subject premises.

The record before the Court includes the August 4, 2026 order of Surrogate Graham scheduling a hearing. It states:

Ms. Shabtai is required to appear before this Court because of a significant amount of email correspondence and other communications and actions which may be considered frivolous and in bad faith.

This Court has been sent communications created by Ms. Shabtai which may violate the Court User Expectations and Responsibilities adopted by the Unified Court System, the Joint Part Rules of the Surrogate's Court, Kings County, and 22 NYCRR 130.1, and which interfere with the proper administration of Court functions.

A search by this Court in the NYSCEF court document filing platform reveals that petitioner has been a plaintiff or petitioner, or a defendant or respondent, in at least 14 matters in Supreme Court or Civil Court dating back to 2022 which involve the subject property or the estates of her parents. Counsel for respondent Graham stated at oral argument that there was also a federal court action.

Respondent Graham's Opposition

In opposing the petition herein, respondent Surrogate Graham, through his counsel, offered several arguments: that petitioner cannot show a clear legal right to decisions on her pending applications in Surrogate's Court, that petitioner does not show a clear legal right to additional notice of the sanctions hearing scheduled by said respondent, and that a cause of action of petitioner's for due process and arbitrary proceeding is not recognized in an Article 78 proceeding.

Respondent Surrogate Graham provides further information to add to that which was obtained from petitioner's submission and in-court appearance. Since October 2019, seven related proceedings were commenced in Kings County Surrogate's Court in connection with the estate of petitioner's father. There is currently pending an accounting proceeding in Surrogate's Court titled "Estate of Shimon Shabtai, File No. 2019-4147/E." Petitioner and her sister, Zehavit Michael served alternately as fiduciaries of the estate. Although ordered to do so, Michael never filed an accounting.

At least some of the orders to show cause submitted to Surrogate's Court by petitioner were rejected by that Court's Accounting Department as duplicate or improper submissions; comments were posted on NYSCEF explaining the reasons. Petitioner filed a federal action against respondent Surrogate Graham in the United States District Court for the Eastern District of New York in which it was alleged that he violated her due process.

On September 15, 2026, respondent Surrogate Graham conducted the sanctions hearing he had scheduled. On September 29, 2026, he issued an order restraining petitioner from initiating further litigation or motion practice arising from the estates of her parents unless she were represented by an attorney or obtained leave of court. He described a stream of insulting and threatening language engaged in by petitioner against various individuals during the course of the "contentious litigation" involving her parents' estates. Petitioner was accused by an attorney working on the wrongful death case commenced by her mother's estate against a nursing home of threatening not to testify at a future trial unless information was given to her. All of this took place against the backdrop of numerous emails sent to Surrogate's Court personnel and others. Besides the Eastern District litigation, there was also litigation by petitioner in the Southern District. Respondent Surrogate Graham stated:

Ms. Shabtai has engaged in a prolific campaign of suing people who are involved in any way with the administration of the Shabtai Estates and filing disciplinary complaints against lawyers who have had some connection to the Shabtai Estates' proceedings. These actions by Ms. Shabtai are calculated and deliberate, and are conducted outside the parameters of acceptable legal and ethical practice. Her communications were "undertaken to 'harass' since they were numerous in number, sent frequently, inappropriate, and unsolicited." (Morningside Translations, Inc v Tsaidi, 45 Misc 3d 1225(A) [Sup. Ct., NY Co., 2014]). In instances such as this, courts have enjoined litigants from commencing or continuing any further actions when it was found those litigants were abusing the judicial process. (Spremo v Babchik, 155 Misc 2d 796, 589 NYS2d 1019 [Sup. Ct., Queens Co, 1992]).

Discussion

Signing Orders to Show Cause

It is eminently clear that petitioner Devora Shabtai has been engaged in a virulently acrimonious dispute with her sister, Zehavit Michael, over their parents' estates, which has morphed into a spate of vexatious and ethically-challenged litigation undertaken by petitioner in which she has bombarded the state and federal courts with one case after another. Further, as an outgrowth of the litigation, petitioner launched a cascade of complaints against court personnel and attorneys. Be that as it may, this Court is called upon to determine the issue in the present Article 78 special proceeding, to wit, should this Court order respondent Surrogate Graham to take certain actions.

This article 78 special proceeding is in the nature of mandamus. Concerning mandamus, the Court of Appeals has said:

"A writ of mandamus 'is an "extraordinary remedy" that is "available only in limited circumstances" ' (Matter of County of Chemung v Shah, 28 NY3d 244, 266 [2016], quoting Klostermann v Cuomo, 61 NY2d 525, 537 [1984]). Such remedy will lie 'only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law' (New York Civ. Liberties Union v State of New York, 4 NY3d 175, 184 [2005]; see also CPLR 7803 [1]). While mandamus to compel ' "is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which [a public] officer may exercise judgment or discretion" ' (Klostermann, 61 NY2d at 539, quoting Matter of Gimprich v Board of Educ. of City of NY, 306 NY 401, 406 [1954]). Discretionary acts ' "involve[ ] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result" ' (New York Civ. Liberties Union, 4 NY3d at 184, quoting Tango v Tulevech, 61 NY2d 34, 41 [1983]). Further, mandamus may only issue to compel a public officer to execute a legal duty; it may not ' "direct how [the officer] shall perform that duty" ' (Klostermann, 61 NY2d at 540, quoting People ex rel. Schau v McWilliams, 185 NY 92, 100 [1906])." (Alliance to End Chickens as Kaporos v New York City Police Dept., 32 NY3d 1091, 1093 [2018].)

With respect to the unsigned orders to show cause presented by petitioner to Surrogate's Court, this Court may not order respondent Surrogate Graham to determine whether or not to sign them. Neither may it order him to provide an explanation of how he makes his determination whether or not to sign them. Nothing requires that he conduct a hearing on the record. Signing an order to show cause ordinarily involves judicial discretion (see CPLR 2214 [d]; U.S. Bank Trust, N.A. v DeLuca, 173 AD3d 1242 [2d Dept 2019). "The CPLR does not give a definition of a 'proper case,' so the decision to sign an order to show cause is within the judge's discretion (see Siegel & Connors, NY Prac § 248 [6th ed])" (U.S. Bank Trust, N.A. v DeLuca, 173 AD3d at 1243).

As held in Greenhaus v Milano (242 AD2d 383, 384 [2d Dept 1997]), "The petitioner's argument, if accepted, would totally remove the exercise of discretion from the judiciary in precisely those situations where the Legislature is of the view that judicial oversight is crucial. Any other holding would inevitably foster frivolous applications by way of orders to show cause from litigants intent on harassing their adversaries. Although the order to show cause submitted by the mother here cannot be deemed frivolous, the mother has an adequate remedy to the respondents' refusal to sign her order to show cause, by application to this Court pursuant to CPLR 5704 (a)."

"Mandamus does not lie to compel a Justice of the Supreme Court to sign an order to show cause" (Matter of Rosenthal v Agate, 29 AD3d 809, 809 [2d Dept 2006]; see Matter of Greenhaus v Milano, 242 AD2d 383 [2d Dept 1997]).

"If the court declines to sign an order to show cause, that is all it should do. Second, a remedy of a party whose proposed order to show cause has been refused is to seek relief from the Appellate Division pursuant to CPLR 5704 (a). The remedy is not to simply re-submit the same application to the same or a different Supreme Court Justice." (Cypress Hills Mgt., Inc. v Lempenski, 173 AD3d 830, 831 [2d Dept 2019].) Petitioner's repeated submission of orders to show cause to Surrogate's Court, essentially seeking the same relief, and not availing herself of the relevant CPLR provision is contrary to procedural law.

In any event, some of petitioner's submitted orders to show cause were determined to be duplicative. Alleged actions taken by the Surrogate's Court to delete them actually are consistent with law.

Sanctions Hearing

While petitioner complained about being ordered by respondent Surrogate Graham to attend a sanctions hearing, as directed in his August 4, 2026 order, the Court notes that on August 25, 2026, an amended hearing order provided further information to petitioner concerning the nature of the hearing, specifically that there were a series of emails sent to court personnel over several months. Clearly, petitioner herein was placed on notice as to the subject matter of the sanctions hearing.

Moreover, it was within the discretion of a court to schedule a sanctions hearing and, therefore, a determination to do so would not lie within the purview of an Article 78 court to review. Challenges to the sanctions court's determination are within the domain of the Appellate Division. (See Matter of Hirschfeld v Friedman, 307 AD2d 856 [1st Dept 2003]; Matter of Dick v Kane, 284 AD2d 686 [3d Dept 2001].) "The courts are most reluctant to entertain prohibition when doing so interferes with normal trial and appellate procedures by permitting collateral review of matters which could be cured upon direct appeal" (Matter of Holtzman v Goldman, 71 NY2d 564, 569 [1988]; see Dick v Kane, 284 AD2d at 690).

In any event, any issue as to notice of the sanctions hearing is academic, since the hearing was conducted; a court's jurisdiction only extends to live controversies (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801 [2003]).

Determination of Pending Motions

It is unclear form petitioner's papers whether there is a pending calendared motion  ⁴ which was has not yet been determined by respondent Surrogate Graham. According to respondent Graham's counsel, there is one such motion but the CPLR 60-day deadline has not yet elapsed. This leads the court to note that while a certain degree of latitude may be accorded to pro se litigants (see Haverlin v Gottlieb, 49 Misc 3d 131[A], 2015 NY Slip Op 51750[U] [App Term, 9th & 10th Dists. 2015]), "A self-represented litigant acquires no greater rights than any other litigant (see Duffen v. State, 245 AD2d 653, 665 N.Y.S.2d 978; Brooks v. Inn at Saratoga Assn., 188 AD2d 921, 591 N.Y.S.2d 625)" (Greenfield v Gluck, 2003 WL 1961333 [App Term 2d & 11th Dists 2003]).

It behooved petitioner to specify for the court which motion brought on by signed order to show cause or notice of motion was actually marked submitted by respondent after appearing on his motion calendar and not determined yet. As such, there is no basis to order respondent to determine such a motion.

Ownership of the Subject Premises

Several times during oral argument, petitioner implored this Court to compel respondent Surrogate Graham to determine the issue of who owns the subject property. However, petitioner has not provided concrete evidence that the issue was presented in some format to respondent in a manner where a determination was mandatory. Hence, this Court does not know whether that issue is actually before him and the papers submitted do not provide clarification on that matter. If the issue has not been presented to respondent, this Court lacks jurisdiction to order him to determine it. If the issue was presented to him and there was a determination without making a finding or issuing a holding on that issue, petitioner's remedy would be to move to reargue (see CPLR 2221 [d]) and/or to appeal to the Appellate Division.

If the issue of ownership of the subject premises was contained within a motion submitted through an order to show cause, and respondent declined to sign it, it was within his discretion to do so, as discussed supra at 7-8. It appears to this Court that petitioner failed to avail herself of the provisions of CPLR 5704 (a), if that was the case.

Enforcement of Accounting by Zehavit Michael

Similarly, Petitioner has not submitted concrete evidence to this Court that respondent Surrogate Graham has failed to perform his duties with respect to the issue of an accounting from former fiduciary Zehavit Michael. It appears to the Court, however, that respondent is dealing properly with all matters relating to the estates of petitioner's parents.

Petitioner has expended much time and energy in relating to this Court that there is a dispute over who owns the subject property, but this Court lacks jurisdiction to rule on the merits of that issue. Solely before this Court is whether to order respondent Surrogate Graham to perform a duty enjoined on him by law.

Closing Analysis

"Mandamus will lie to compel the determination of a motion" (Matter of Weinstein v Haft, 60 NY2d 625, 627 [1983]). However, the non-issuance of a determination of a motion does not always warrant mandamus (see id.). "It is well recognized that the power to control its calendar is a vital consideration in the administration of the courts" (Headley v Noto, 22 NY2d 1 [1968]). Were this Court to grant relief sought by petitioner in the particular situation presented, it would be improperly intruding upon the authority of respondent to adjudicate matters lying within the jurisdiction of the Surrogate's Court. For the reasons set forth above, petitioner has not demonstrated entitlement to the branches of relief sought in her order to show cause commencing this Article 78 special proceeding.

While petitioner has named respondents other than Surrogate Graham, no relief is sought with respect to them. They should not have been named as respondents. "[T]his Court lacks subject matter jurisdiction over the proceeding insofar as asserted against [them] (see CPLR 7804 [b]; 506 [b] [1]; Matter of Nolan v Lungen, 61 NY2d 788, 790 [1984]; Matter of Lawtone-Bowles v Klein, 131 AD3d 697, 698 [2015]; Matter of Morales v Woods, 85 AD3d 924 [2011])" (Matter of Liang v Hart, 132 AD3d 765, 766 [2d Dept 2015]).

Conclusion

It is hereby ORDERED and ADJUDGED that the petition herein, submitted by petitioner Devora Shabtai is denied with prejudice and the within Article 78 special proceeding is dismissed in its entirety.

FOOTNOTES

1.   The transcript of the hearing before the Court may be obtained from the court reporter.

2.   In an email to the Court and its staff, petitioner asserted: "I respectfully request an emergency adjournment of the October 30, 2026 hearing. I fear that I may be arrested for the seventh time on October 28, 2026, based on further accusations that I maintain are fabricated by individuals occupying my family home. Based on my previous experiences, I may remain in Central Booking for 40 hours or longer, making my attendance impossible." It is noted that petitioner appeared for oral argument before the Court on October 30, 2026.

3.   This reference by petitioner to NYSCEF is presumably to the file in the action pending in Surrogate's Court. The "conveyance letter" was purportedly signed by her mother — and not in the form prescribed for a deed or will.

4.   By "calendared motion," the Court means a motion either brought on by an order to show caused signed by a justice or one brought on by notice of motion which court personnel has accepted as conforming to procedural requirements.

Aaron D. Maslow, J.