Opinion
2017–09919 Index No. 70952/15
08-28-2019
In the Matter of CITY OF YONKERS, Respondent, v. YONKERS FIRE FIGHTERS, LOCAL 628, International Association of Firefighters, AFL–CIO, et al., Appellants.
Archer, Byington, Glennon & Levine, LLP, Melville, N.Y. (Richard Corenthal of counsel), for Appellants. Coughlin & Gerhart, LLP, Binghamton, N.Y. (Paul J. Sweeney of counsel), for Respondent.
Archer, Byington, Glennon & Levine, LLP, Melville, N.Y. (Richard Corenthal of counsel), for Appellants.
Coughlin & Gerhart, LLP, Binghamton, N.Y. (Paul J. Sweeney of counsel), for Respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, RUTH C. BALKIN, JOSEPH J. MALTESE, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
The petitioner commenced this proceeding pursuant to CPLR article 75 to vacate an arbitration award dated September 26, 2015, which, inter alia, determined that the petitioner had improperly terminated the employment of the appellant Christopher Giardini with the City of Yonkers Fire Department. In an order and judgment dated June 10, 2016, the Supreme Court granted the petition and vacated the arbitration award. Approximately nine months later, the appellants moved for recusal of the Supreme Court Justice presiding over this proceeding, and to vacate the order and judgment issued by her on June 10, 2016. In the order appealed from, the Supreme Court denied the motion.
We agree with the Supreme Court's denial of the appellants' motion, inter alia, for mandatory disqualification of the Supreme Court Justice pursuant to Judiciary Law § 14 and Canon 3(E)(1)(d)(i) of the Code of Judicial Conduct ( 22 NYCRR § 100.3 ), and, upon her disqualification, to vacate the order and judgment of the same court dated June 10, 2016. Judiciary Law § 14 prohibits a trial judge from presiding over any claim "if he [or she] is related by consanguinity or affinity to any party to the controversy within the sixth degree." Similarly, Code of Judicial Conduct Canon 3(E)(1)(d)(i) calls upon a judge to disqualify himself or herself in a proceeding in which a person "known by the judge to be within the sixth degree of relationship" to the judge is "a party to the proceeding." Here, the record does not reveal that any person related to the Supreme Court Justice is a party to this proceeding. Thus, mandatory disqualification pursuant to Judiciary Law § 14 and Canon 3(E)(1)(d)(i) of the Code of Judicial Conduct was not required (see People v. Leonard, 37 A.D.3d 1148, 1149, 829 N.Y.S.2d 369 ; People v. Roberts, 6 A.D.3d 942, 942, 775 N.Y.S.2d 424 ; People v. Griffiths, 155 A.D.2d 777, 779, 548 N.Y.S.2d 89 ).
With regard to the question of discretionary recusal, we likewise agree with the Supreme Court's denial of the appellants' request for recusal of the Supreme Court Justice based on alleged impropriety or bias. Absent a legal disqualification under Judiciary Law § 14, "the determination concerning a motion seeking recusal based on alleged impropriety, bias, or prejudice is within the discretion and ‘the personal conscience of the court’ " ( Daniels v. City of New York, 96 A.D.3d 895, 895, 946 N.Y.S.2d 510, quoting People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200 ; see Sassower v. Gannett Co., Inc., 109 A.D.3d 607, 609, 972 N.Y.S.2d 41 ). "Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist" ( People v. Alomar, 93 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958 [citation omitted]; see Ralis v. Ralis, 146 A.D.3d 831, 833, 46 N.Y.S.3d 631 ; Matter of Khan v. Dolly, 39 A.D.3d 649, 650–651, 833 N.Y.S.2d 608 ). The denial of a recusal motion will constitute an improvident exercise of discretion only where the movant puts forth demonstrable proof of the judge's bias or prejudgment (see Matter of Rodriguez v. Liegey, 132 A.D.3d 880, 880–881, 18 N.Y.S.3d 161 ; Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d 465, 466, 813 N.Y.S.2d 191 ; Modica v. Modica, 15 A.D.3d 635, 636, 791 N.Y.S.2d 134 ). " ‘[A]bsent a showing of actual bias or a statutory basis for recusal, proceedings conducted prior to a motion for recusal, or prior to a voluntary withdrawal from the case, remain valid’ " ( Ulrich v. Estate of Zdunkiewicz, 8 A.D.3d 1014, 1014, 778 N.Y.S.2d 582, quoting Rochester Community Individual Practice Assn. v. Excellus Health Plan, 305 A.D.2d 1007, 1008, 758 N.Y.S.2d 576 ; see Matter of Kurz v. Justices of Supreme Ct. of N.Y., Kings County, 228 A.D.2d 74, 76, 654 N.Y.S.2d 783 ).
Here, the appellants failed to present any evidence that the Supreme Court Justice had any improper interest in the outcome of this proceeding or harbored actual bias against the appellants so as to warrant the conclusion that her denial of their recusal request was an improvident exercise of discretion (see Matter of Bianco v. Bruce–Ross, 151 A.D.3d 716, 717–718, 56 N.Y.S.3d 243 ; Matter of Imre v. Johnson, 54 A.D.3d 427, 428, 863 N.Y.S.2d 473 ; Schreiber–Cross v. State of New York, 31 A.D.3d 425, 819 N.Y.S.2d 530 ; Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d at 466, 813 N.Y.S.2d 191 ).
Accordingly, the appellants' motion was properly denied.
MASTRO, J.P., RIVERA, BALKIN and MALTESE, JJ., concur.