Opinion
No. 34774/08.
2010-07-14
The NEW HOPE MISSIONARY BAPTIST CHURCH, INC., a Religious Corporation and Glorious Temple Church of God in Christ, Plaintiffs, v. 466 LAFAYETTE LTD., Dean Holding Corp., J Marc Properties, Inc., 66 George Street Realty Corp., Neshama, Inc., Everbank Reverse, LLC, U.S. Bank National Association, Charles Lambo, Marjorie Beecher, Daisy Mason, Michael Guerra, Monica Guerra, Raj Mohan, Sujatha Mohan and Angel Rodriguez, Defendants.
Fred Way III, Esq., Jonathan Roller, Esq., Brooklyn, for plaintiff, Glorious Temple. John D'emic, c/o Arnold Ludwig, Brooklyn, pro se.
Fred Way III, Esq., Jonathan Roller, Esq., Brooklyn, for plaintiff, Glorious Temple. John D'emic, c/o Arnold Ludwig, Brooklyn, pro se.
Rossi & Crowley, LLP, Douglaston, for Rodriguez.
Ackerman Levine, LLP, Great Neck, for Guerras and Mohans.
Edward Kesselman, Esq, New York, for Everbank.
ARTHUR M. SCHACK, J.
These actions involve complex litigation arising from competing claims of ownership to four parcels of real property located in Brooklyn, New York: 466 Lafayette Avenue (Block 1950, Lot 16, County of Kings); 470 Lafayette Avenue (Block 1950, Lot 18, County of Kings); 319 Nostrand Avenue (Block 1803, Lot 7, County of Kings); and, 65 Bond Street (Block 172, Lot 4, County of Kings). While pending before the Court are various motions and cross-motions for summary judgment, pro se defendant/third-party plaintiff VINCENT LONGOBARDI (LONGOBARDI) moves for a change of venue. LONGOBARDI, in his motion, claims that he cannot receive a fair trial in Kings County because third-party defendant JOHN D'EMIC (D'EMIC) is the brother of the Honorable Matthew D'Emic, a Court of Claims Judge who is a Kings County Acting Supreme Court Justice, and D'EMIC is also the Chief Deputy County Clerk for Kings County.
LONGOBARDI's claims that D'EMIC has “pervasive influence” and “this Court had so many scandals and been plagued with corruption over the last few years” are not only ridiculous and outrageous, but merely conclusory. The only evidence presented by LONGOBARDI in support of the instant motion are newspaper clippings about D'EMIC's legal problems. Nothing is presented that supports D'EMIC's alleged “pervasive influence” or that Supreme Court, Kings County “had so many scandals and been plagued with corruption over the last few years.” Further, LONGOBARDI presents no evidence about the disposition of D'EMIC's legal issues.
In Behrins & Behrins, P.C. v. Chan (40 AD3d 560 [2d Dept 2007], the Court at 560–561, could have been discussing the merits of the instant motion, when it instructed:
A motion to transfer venue pursuant to CPLR 510(2) is addressed to the sound discretion of the trial court ( see Milazzo v. Long Is. Light Co. 160 A.D.2d 495 [2d Dept 1984] ), and its determination will not be disturbed absent an improvident exercise of discretion ( see generally Cannon v. City of New York, 27 AD3d 607 [2d Dept 2006]; Rizzuto v. Aurelia Osborne Fox Mem. Hosp. Socy., 265 A.D.2d 471 [2d Dept 1999]; Wantanabe Realty Co. v. H.B. Singer, Inc., 170 A.D.2d 670 [2d Dept 1991]. The movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained ( see Field v. Schultz, 288 A.D.2d 177 [2d Dept 2001]; De Bolt v. Barbosa, 290 A.D.2d 821 [3d Dept 2001]; Albanese v. West Nassau Mental Health Ctr., 208 A.D.2d 665 [2d Dept 1994] ). Here, the appellant's motion papers consisted of nothing more than conclusory allegations, beliefs, suspicions, and feelings of possible bias against her and were inadequate grounds for the granting of the motion ( see Cohen v. Bernstein, 9 AD3d 573 [3d Dept 2004]; Warm v. State, 265 A.D.2d 546 [2d Dept 1999]; Jablonski v. Trost, 245 A.D.2d 338[2d Dept 1997]; Locker v. 670 Apts Corp., 232 A.D.2d 176 [1d Dept 1996]; Krupka v. County of Westchester, 160 A.D.2d 681 [2d Dept 1990]; Sadur v. Doctors Hosp. of Staten Is., 146 A.D.2d 691 [2d Dept 1989]; cf. Amann v. Caccese, 223 A.D.2d 663 [2d Dept 1996]; Milazzo v. Long Is. Light Co., supra ). Accordingly, the Supreme Court properly denied the appellant's motion to transfer venue ( see generally Mikul v. Silverman, 25 AD3d 625 [2d Dept 2006] ).
More recently, the Appellate Division, Second Department, in denying a change of venue held “the petitioner failed to meet his burden by offering only conclusory allegations, beliefs, suspicions, and feelings of possible bias or the appearance of impropriety.” (In re Michiel, 48 AD3d 687 [2d Dept 2008] ). Therefore, the instant motion to change venue is denied.
However, I know D'EMIC's brother, Justice Matthew D'Emic, for approximately 30 years. Justice D'Emic is a jurist of the highest integrity. Justice D'Emic and I served together as members and officers of Community Board 10, Brooklyn and we share memberships in various organizations. Therefore, to avoid any potential appearance of impropriety in the instant case, I must recuse myself from this matter even though I know I would be fair and impartial as the Individual Assignment Judge for this action and in deciding motions in this action pending before the Court. However, in the exercise of discretion, good conscience, and to avoid any speculation as to the rationale for any decisions, I recuse myself from this case.
Judge Bellacosa, for a unanimous Court of Appeals (People v. Moreno, 70 N.Y.2d 403, 405 [1987] ) instructed that “[a]bsent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal.” The Court, in Schwartzberg v. Kingsbridge Heights Care Center, Inc., 28 A.D.2d 465, 466 (2d Dept 2006), held that “[i]n the absence of a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and his or her decision is a matter of discretion and personal conscience ( see People v. Moreno, 70 N.Y.2d 403, 405) .” In Poli v. Gara, 117 A.D.2d 786, 788–789 (2d Dept 1986), the Court stated that “[t]he question of whether a Judge should recuse himself to avoid an appearance of impropriety is a matter left to the personal conscience of the court ( e.g., Matter of Johnson v. Hornblass, 93 A.D.2d 732 [1d Dept 1983]; Casterella v. Casterella, 65 A.D.2d 614 [2d Dept 1978] ).” ( See People v. Fischer, 143 A.D.2d 1036 [2d Dept 1988]; People v. Gallagher, 158 A.D.2d 469 [2d Dept 1990]; Warm v. State, 265 A.D.2d 546 [2d Dept 1999]; In re Jimmy H., 274 A.D.2d 430 [2d Dept 2000]; People ex rel. Smulczeski, ex rel. Smulczeski v. Smulczeski, 18 AD3d 785 [2d Dept 2005]; Tornheim v. Tornheim, 28 AD3d 534 [2d Dept 2006]; Montesdeoca v. Montesdeoca, 38 AD3d 666 [2d Dept 2007]; Kupersmith v. Winged Foot Gold Club, Inc., 38 AD3d 847 [2d Dept 2007] ).
Conclusion
Accordingly, it is
ORDERED, that the motion of pro se defendant/third-party plaintiff VINCENT LONGOBARDI (LONGOBARDI) for a change of venue of the instant action is denied; and it is further
ORDERED, that I recuse myself forthwith from the instant action.
This constitutes the Decision and Order of the Court.