Opinion
625 CA 19-01799
12-23-2020
Joanna TRIPI, Plaintiff-Appellant, v. Frank P. ALABISO, Ph.D., Defendant-Respondent.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JILL L. YONKERS OF COUNSEL), FOR PLAINTIFF-APPELLANT. HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (JILL L. YONKERS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (ANDREA SCHILLACI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages, based on various theories of liability, in connection with defendant's preparation of a custodial evaluation report that was submitted in a separate matrimonial action between plaintiff and her former husband. Plaintiff now appeals from an order denying her motion seeking recusal of the Supreme Court Justice assigned to this case due to the court's work on portions of the matrimonial action, which included ruling on the admissibility of the custodial evaluation report in that case. We affirm. It is well settled that, "[a]bsent a legal disqualification ..., a [j]udge is generally the sole arbiter of recusal" ( Matter of Murphy , 82 N.Y.2d 491, 495, 605 N.Y.S.2d 232, 626 N.E.2d 48 [1993] ; see Judiciary Law § 14 ), and "the decision whether to recuse is committed to his or her discretion" ( Matter of Trinity E. [Robert E.] , 144 A.D.3d 1680, 1681, 41 N.Y.S.3d 817 [4th Dept. 2016] ; see Murphy , 82 N.Y.2d at 495, 605 N.Y.S.2d 232, 626 N.E.2d 48 ). Although "recusal is required where the ‘impartiality [of the judge] might reasonably be questioned’ ( 22 NYCRR 100.3 [E] [1] ), a party's unsubstantiated allegations of bias are insufficient to require recusal" ( Matter of Brooks v. Greene , 153 A.D.3d 1621, 1622, 61 N.Y.S.3d 403 [4th Dept. 2017] ; see Matter of Rottenberg v. Clarke , 144 A.D.3d 1627, 1628, 41 N.Y.S.3d 848 [4th Dept. 2016] ; cf. Trinity E. , 144 A.D.3d at 1681, 41 N.Y.S.3d 817 ).
Here, plaintiff correctly concedes that there is no legal disqualification under the definition set forth in section 14 of the Judiciary Law, and we conclude that the court did not abuse its discretion in denying plaintiff's recusal motion (see generally Matter of McLaughlin v. McLaughlin , 104 A.D.3d 1315, 1316, 961 N.Y.S.2d 838 [4th Dept. 2013] ). Contrary to plaintiff's contention, the court did not gain any information in connection with the custodial evaluation report produced in the matrimonial action that would require it to recuse itself in this case. The court stated that it had not read the report and, even assuming, arguendo, that the court gained some information concerning the contents of the report from the motion papers filed in the matrimonial action, we reject plaintiff's contention that recusal is warranted on that basis. "It is well settled that ‘[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case’ " ( Board of Educ. of City Sch. Dist. of City of Buffalo v. Pisa , 55 A.D.2d 128, 136, 389 N.Y.S.2d 938 [4th Dept. 1976], quoting United States v. Grinnell Corp. , 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 [1966] ; see Affinity Elmwood Gateway Props. LLC v. AJC Props. LLC , 113 A.D.3d 1094, 1096, 978 N.Y.S.2d 565 [4th Dept. 2014] ). Here, plaintiff "does not contend that the court's alleged bias stemmed from an extrajudicial source ..., nor in any event would the record support such a contention" ( Matter of McDonald v. Terry , 100 A.D.3d 1531, 1531, 954 N.Y.S.2d 715 [4th Dept. 2012] [internal quotation marks omitted] ). Moreover, although the court while presiding over the matrimonial action for a period of time denied plaintiff's motion in that case seeking to preclude certain evidence, including the custodial evaluation report, it is well settled that "the fact that a judge issues a ruling that is not to a party's liking does not demonstrate either bias or misconduct" ( Gonzalez v. L'Oreal USA, Inc ., 92 A.D.3d 1158, 1160, 940 N.Y.S.2d 328 [3d Dept. 2012], lv dismissed 19 N.Y.3d 874, 947 N.Y.S.2d 48, 969 N.E.2d 1163 [2012] ; see Matter of Dale v. Burns , 103 A.D.3d 1243, 1244, 959 N.Y.S.2d 781 [4th Dept. 2013], appeal dismissed 21 N.Y.3d 968, 970 N.Y.S.2d 493, 992 N.E.2d 421 [2013] ).
Plaintiff further contends that the court should have recused itself to avoid the appearance of impropriety. We reject that contention. "[W]hether a [j]udge should recuse himself [or herself], to avoid the appearance of impropriety, is a matter left to the personal conscience of the court" ( SSAC, Inc. v. Infitec, Inc. , 198 A.D.2d 903, 904, 604 N.Y.S.2d 452 [4th Dept. 1993] [internal quotation marks omitted] ). Based on our review of the record, we conclude that none of the reasons proffered by plaintiff concerning the alleged appearance of impropriety, "either alone or in combination, suggested any judicial bias that would warrant recusal" ( Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc. , 28 A.D.3d 465, 466, 813 N.Y.S.2d 191 [2d Dept. 2006] ; cf. Concord Assoc., L.P. v. EPT Concord, LLC , 130 A.D.3d 1404, 1405-1406, 15 N.Y.S.3d 270 [3d Dept. 2015], lv denied 26 N.Y.3d 912, 2015 WL 7374175 [2015] ). Indeed, "[a] judge has an obligation not to recuse himself or herself ... unless he or she is satisfied that he or she is unable to serve with complete impartiality, in fact or appearance" ( Silber v. Silber , 84 A.D.3d 931, 932, 923 N.Y.S.2d 131 [2d Dept. 2011] [internal quotation marks omitted] ) and, here, the court concluded that "it could be fair and impartial in weighing the matters of this case."