Summary
moving party was required to establish a “strong possibility” that an impartial trial cannot be had in Schoharie County
Summary of this case from Carestream Health, Inc. v. Harris Beach PLLCOpinion
2012-02-23
Peter GONZALEZ et al., Appellants, v. L'OREAL USA, INC., Respondent.
Peter Gonzalez and Francesca Gonzalez, Troy, appellants pro se. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Michael J. Murphy of counsel), for respondent.
Peter Gonzalez and Francesca Gonzalez, Troy, appellants pro se. Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Michael J. Murphy of counsel), for respondent.
Before: LAHTINEN, J.P., SPAIN, STEIN, GARRY and EGAN JR., JJ.
EGAN JR., J.
Appeals (1) from an order of the Supreme Court (O'Connor, J.), entered August 5, 2010 in Schoharie County, which, among other things, denied plaintiffs' motion for a change of venue, and (2) from an order of said court, entered November 15, 2010 in Schoharie County, which, among other things, denied plaintiffs' motion to disqualify the assigned Acting Supreme Court Justice.
In December 2006, plaintiffs commenced this products liability action in Schoharie County—where they resided—seeking to recover for injuries allegedly sustained by plaintiff Francesca Gonzalez while coloring her hair utilizing a product purportedly manufactured by defendant. In October 2008, Supreme Court (Devine, J.) ordered plaintiffs to accept service of defendant's motion to dismiss the complaint and, in February 2009, Supreme Court partially granted that motion, leaving only plaintiffs' breach of warranty claim intact. Plaintiffs did not appeal from either of those orders. Justice Devine subsequently recused himself in August 2009, and the matter eventually was reassigned to Supreme Court (O'Connor, J.) in February 2010.
In the interim, plaintiffs brought several motions seeking, insofar as is relevant to these appeals, disqualification of Justice Devine, vacatur of the October 2008 and February 2009 orders and a change of venue from Schoharie County to Rensselaer County. Defendant, in turn, cross-moved to dismiss plaintiffs' complaint based upon their willful failure to comply with outstanding discovery demands. By order entered August 5, 2010, Supreme Court (O'Connor, J.) denied plaintiffs' numerous motions and conditionally granted defendant's cross motion to dismiss the complaint unless plaintiffs complied with the discovery demands within 30 days.
Plaintiffs thereafter moved to disqualify Justice O'Connor and, by order entered November 15, 2010, their motion was denied. These appeals by plaintiffs ensued.
Defendant acknowledges in its brief that plaintiffs subsequently served timely responses to the then outstanding discovery demands.
Plaintiffs also subsequently (and unsuccessfully) sought to disqualify certain members of this Court from entertaining their appeals.
We affirm. To the extent that plaintiffs' various recusal/disqualification motions are properly before this Court, we find them to be lacking in merit. “Absent a legal disqualification under Judiciary Law § 14, which is not at issue here, a ... judge is the sole arbiter of recusal and his or her decision, which lies within the personal conscience of the court, will not be disturbed absent an abuse of discretion” ( Kampfer v. Rase, 56 A.D.3d 926, 926, 867 N.Y.S.2d 742 [2008], lv. denied 11 N.Y.3d 716, 874 N.Y.S.2d 5, 902 N.E.2d 439 [2009] [internal quotation marks and citations omitted]; see Mokay v. Mokay, 67 A.D.3d 1210, 1213, 889 N.Y.S.2d 291 [2009] ). We perceive no abuse of that discretion here. Further, “[r]ecusal, 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 [1999] [citation omitted]; accord Albany County Dept. of Social Servs. v. Rossi, 62 A.D.3d 1049, 1050, 880 N.Y.S.2d 199 [2009]; Kampfer v. Rase, 56 A.D.3d at 926, 867 N.Y.S.2d 742). Again, no such showing has been made here. Notably, the fact that a judge issues a ruling that is not to a party's liking does not demonstrate either bias or misconduct ( see generally Oakes v. Muka, 56 A.D.3d 1057, 1059, 868 N.Y.S.2d 796 [2008] ).
Plaintiff's motion for a change of venue also was properly denied, as plaintiffs failed to establish a “strong possibility” that an impartial trial cannot be had in Schoharie County ( Albanese v. West Nassau Mental Health Ctr., 208 A.D.2d 665, 666, 617 N.Y.S.2d 821 [1994]; accord Blaine v. International Bus. Machs. Corp., 91 A.D.3d 1175, 937 N.Y.S.2d 405, 406 [2012] ). “[M]ere belief, suspicion or feeling are insufficient grounds to grant a motion to change venue” ( Cohen v. Bernstein, 9 A.D.3d 573, 574, 780 N.Y.S.2d 646 [2004] ).
Finally, to the extent that plaintiffs seek to vacate the October 2008 and February 2009 orders of Supreme Court (Devine, J.), plaintiffs—as noted previously—did not appeal from either of these orders, and it is well settled that “a motion to vacate should not be utilized as a means by which to raise an issue of law that could have been pursued in the course of a timely perfected appeal” ( KLCR Land Corp. v. New York State Elec. & Gas Corp., 15 A.D.3d 719, 720, 789 N.Y.S.2d 323 [2005]; accord Matter of Suzanne v. Suzanne, 69 A.D.3d 1011, 1012, 893 N.Y.S.2d 323 [2010] ). As for plaintiffs' related motions to renew and/or reargue, even assuming that such motions were made in a timely fashion, no appeal lies from the denial of a motion to reargue ( see Matter of Biasutto v. Biasutto, 75 A.D.3d 671, 672, 904 N.Y.S.2d 548 [2010] ), and plaintiffs failed to satisfy the standard for renewal as they did not point to “any new facts or change in the law that would require a different determination” ( Marquis v. Washington, 85 A.D.3d 1338, 1338, 924 N.Y.S.2d 299 [2011]; see CPLR 2221[e][2] ). Plaintiffs' remaining arguments, to the extent that they are properly before us, have been examined and found to be lacking in merit.
LAHTINEN, J.P., SPAIN, STEIN and GARRY, JJ., concur.
ORDERED that the orders are affirmed, without costs.