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xxxxx   xx  xx      analysis

Cases -- December 27, 2018 decision -

 

 

 

 

United States v. Will, 449 U.S. 200 (1980)

 

Maron v. Silver, 14 N.Y.3d 230, 249 (2010)

 

 

Maresca v. Cuomo, 64 N.Y.2d 242 (1984)

 

Morgenthau v. Cooke, 56 N.Y.2d 24 (1982)

 

 

People v. Moreno, 70 N.Y.2d 403 (1987) 

Oakley v. Aspinwall,  (1850)

Matter of Ryers

Referred-to case --

 

Johnson v. Hornblass, 93 A.D.2d 732 (1st Dept. 1983),
                      citiing
Merola v. Walsh, 75 A.D.2d 163 (1st Dept. 1980)

Matter of Capoccia v. Appellate Division, Third Department,
104 A.D.2d 536, 537 (3rd Dept. 1984)

 

Maron v. Silver, 14 N.Y.3d 230, 249 (2010)

III. Rule of Necessity

Members of the Court of Appeals are paid via the salary schedule delineated in Judiciary Law § 221 and therefore will be 249affected by the outcome of these appeals. Ordinarily, when a judge has an interest in litigation, recusal is warranted. But this case falls within a narrow exception to that rule. Because no other judicial body with jurisdiction exists to hear the constitutional issues raised herein, this Court must hear and dispose of these issues pursuant to the Rule of Necessity (see Maresca v Cuomo, 64 NY2d 242, 247 n 1 [1984], appeal dismissed 474 US 802 [1985] [addressing a challenge to the State Constitution's mandatory retirement age requirements for certain state judges], citing Matter of Morgenthau v Cooke, 56 NY2d 24, 29 n 3 [1982]).

 

3rd dept:  Maron v. Silver

Although the Justices of this Court have an interest in the outcome of this case, we are required to hear and dispose of these cross appeals pursuant to the rule of necessity, which provides that "wherever it becomes necessary for a judge to sit even where he [or she] has an interest—where no provision is made for calling another in, or where no one else can take his [or her] place—it is [the judge's] duty to hear and decide" 107*107 (United States v Will, 449 US 200, 214 [1980] [internal quotation marks and citation omitted]; see Maresca v Cuomo, 64 NY2d 242, 247 n 1 [1984], appeal dismissed 474 US 802 [1985]).

 

 

 

 

 

May 10, 2016 -- Larabee

 

 

 

Kampfer v. Rase, 56 A.D.3d 926, 926-927 (3rd Dept.  2008)  
"'Moreover, “[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] )." 

Gonzalez v. L’Oreal USA, Inc.,
92 A.D.3d 1158 (3d Dep't), lv. dismissed, 19 N.Y.3d 874 (2012) 

 "[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 [1999] [citation omitted]; accord Matter of Albany County Dept. of Social Servs. v Rossi, 62 A.D.3d 1049, 1050 [2009]; Kampfer v Rase, 56 AD3d at 926). 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 [2008]).

significant cases that should have been cited:

Kilmer v. Moseman, 124 A.D.3d 1195 (3rd Dept.  2015)  & here
(Garry writing decision for 4 judge panel including Devine)
Garry (with Devine on panel): rejected financial interet alleged as "remote, speculative, "possible or contingent" -- citing  (People v Whitridge, 144 App Div 493, 498 [1911]; see Langdon v Town of Webster, 270 A.D.2d 896, 896 [2000], lv denied 95 N.Y.2d 766 [2000]).

Langdon v. Town of Webster

 

 

THE APPELLATE DIVISION, 3rd Dept & JUDICIARY LAW 14

People v. Alteri,
47 A.D.3d 1070  (3rd Dept. 2008)

 A statutory disqualification under Judiciary Law §14 will deprive a judge of jurisdiction (see Wilcox v. Supreme Council of Royal Arcanum, 210 N.Y. 370, 377, 104 N.E. 624 [1914]; see also Matter of Harkness Apt. Owners Corp. v. Abdus-Salaam, 232 A.D.2d 309, 310, 648 N.Y.S.2d 586 [1996] ) and void any prior action taken by such judge in that case before the recusal (see People v. Golston, 13 A.D.3d 887, 889, 787 N.Y.S.2d 185 [2004], lv. denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005]; Matter of Harkness Apt. Owners Corp. v. Abdus– Salaam, 232 A.D.2d at 310, 648 N.Y.S.2d 586). In fact, “ ‘a judge disqualified under a statute cannot act even with the consent of the parties interested, because the law was not designed merely for the protection of the parties to the suit, but for the general interests of justice’ ” (Matter of Beer Garden v. New York State Liq. Auth., 79 N.Y.2d 266, 278–279, 582 N.Y.S.2d 65, 590 N.E.2d 1193 [1992], quoting Matter of City of Rochester, 208 N.Y. 188, 192, 101 N.E. 875 [1913] ).
 Here, it is uncontested that there was no statutory disqualification but a voluntary recusal to avoid the appearance of impropriety. “[W]hen recusal is sought based upon ‘impropriety as distinguished from legal disqualification, the judge ... is the sole arbiter’ ” (People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987], quoting People v. Patrick, 183 N.Y. 52, 54, 75 N.E. 963 [1905] ). Even though such determination will not deprive a judge of jurisdiction (see Matter of Fitzgerald v. Wells, 9 A.D.2d 812, 812, 192 N.Y.S.2d 719 [1959], lv. denied 7 N.Y.2d 711, 199 N.Y.S.2d 1025, 166 N.E.2d 517 [1960], appeal dismissed 9 N.Y.2d 864, 216 N.Y.S.2d 686, 175 N.E.2d 819 [1961] ), the analysis is not so abrupt. While “[a] search warrant is a process of the court” (People v. Hickey, 40 N.Y.2d 761, 762, 390 N.Y.S.2d 42, 358 N.E.2d 868 [1976]; see CPL 690.05[2]) and a local court may properly issue such warrant when it has geographic, but not, necessarily, trial jurisdiction (see People v. Hickey, 40 N.Y.2d at 762–763, 390 N.Y.S.2d 42, 358 N.E.2d 868; People v. Epstein, 47 A.D.2d 661, 661–662 [1975] ), a fundamental constitutional requirement of a valid search warrant is that it be issued by a neutral, detached magistrate (see People v. Bilsky, 95 N.Y.2d 172, 177, 712 N.Y.S.2d 84, 734 N.E.2d 341 [2000]; People v. Potwora, 48 N.Y.2d 91, 94, 421 N.Y.S.2d 850, 397 N.E.2d 361 [1979] ). In light of the voluntary recusal of the Town of Ticonderoga justices to avoid impropriety, we cannot conclude that the review and signing of the warrant by one of such justices met the constitutional imprimatur of having been issued by a neutral and detached magistrate. For this reason, we find that the warrant was improperly issued and that all evidence resulting therefrom was properly suppressed.

 

Matter of Harkness Apt. Owners Corp. v. Abdus-Salaam, 232 AD2d 308 (1996)

People v. Berry,

People v. Alomar  47 A.D.3d 1070 (1999) -- Smith
 "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 (see, Tumey v. State of Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749), or where a clash in judicial roles is seen to exist (see, In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942, supra)."

Beer Garden v. NYS Liquor  79 N.Y.2d 266   (1992)  here  -- Kaye

Judiciary Law § 14 provides that no Judge shall "sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he [or she] is a party, or in which he [or she] has been attorney or counsel." ...

“ ‘Next in importance to the duty of rendering a righteous judgment, is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge.’ So vital is deemed the observance of this principle that it has been held that a judge disqualified under a statute cannot act even with the consent of the parties interested, because the law was not designed merely for the protection of the parties to the suit, *279 but for the general interests of justice.” (Matter of City of Rochester, supra, 208 N.Y. at 192, 101 N.E. 875, quoting People ex rel. Roe & Roe v. Suffolk Common Pleas, 18 Wend 550, 552; see also, Matter of Pelaez v. Waterfront ***71 **1199 Commn., 88 A.D.2d 443, 447–448, 454 N.Y.S.2d 132.)

General Motors Corp. v. Rosa, 1993

"The Rule of Necessity
The participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions (see, US Const, 14th Amend, § 1; NY Const, art I, §6; see also, Matter of 1616 Second Ave. Rest. v New York State Liq. Auth., 75 N.Y.2d 158, 161; Redish and Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale LJ 455, 475-505 [1986]). Judicial independence contributes not only to accurate determinations but also to the appearance of fairness, equality between the parties, and predictability and rationality of result (id., at 482-491).

The Rule of Necessity provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard (see, Matter of Morgenthau v Cooke, 56 N.Y.2d 24, 29-31, n 3; Maresca v Cuomo, 64 N.Y.2d 242, 247, n 1, appeal dismissed 474 U.S. 802; Matter of Ryers, 72 N.Y. 1, 10-15; 3 Davis, Administrative Law Treatise § 19:9 [2d ed]; Schwartz, Administrative Law § 6.19 [2d ed]). Thus, where all members of the adjudicative body are disqualified and no other body exists to which the appeal might be referred for disposition, the Rule of Necessity ensures that neither the parties nor the Legislature will be left without the remedy provided by law (see, Trade Commn. v Cement Inst., 333 U.S. 683, 700-703, reh denied 334 U.S. 839; Matter of Morgenthau, 56 NY2d, at 29, n 3; Sharkey v Thurston, 268 N.Y. 123, 128).

Given the principle at stake, "necessity" must be construed strictly, in favor of delegating judicial authority to others whenever possible (see, Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S Cal L Rev 1877, 1890-1896, 1935-1937 [1988]).


Pines v. State of New York,115 A.D.3d 80 (2nd Dept 2014)

Matter of City of Rochester

Wilcox v. Supreme Council of Royal Arcanum,
210 N.Y. 370 (1914)

Orange v. Storm King  (1920)

"The Rule of Necessity: Is Judicial Non-Disqualification Really Necessary?
Hofstra Law Review, Vol 24 Issue 3 (1996) Thomas McKevitt


Thomas McKevitt

https://swc-law.com/att_Thomas_McKevitt.html

 

Recusal and Recompense: Amending New York Recusal Law in LIght of Judicial Pay Controversy:  Buffalo Law Review, Vol. 57, pp. 1597-  (2008) (Jeffrey T. Fuit)

22 NYCRR 81.1

Rattley v. NY City Police Dept.

Lazzari v. Town of Eastchester

Terzo v. Hospital for Special Surgery

Brown v. Gov't Employees, Inc.


In re Wait, 67 N.Y.2d 15 (N.Y. 1986)

 

Matter of Myers, 67 N.Y.2d 550, 553 (N.Y. 1986)

 

cited cases from respondents' brief
 

Matter of Wittenberg Sportsmen's Club, Inc. v. Town of Woodstock Planning Board, 16 AD3d 991, 993 (3d Dep't 2005)

Olim Realty v. Lanaj Home Furnishings, 65 A.D.3d 1318, 1320 (2d Dep't 2009)

Hadden v. Con Ed, 45 N.Y.2d 466 (1978)

-------

USA v. Terry, 806 Fed Supp. 490, 494 (SDNY 1992)

the Attorney General acts parens patriae, asserting a "quasi sovereign" interest for the common good of the people of the State of New York. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600-08, 102 S. Ct. 3260, 3265-69, 73 L. Ed. 2d 995 (1982); People by Abrams v. 11 Cornwell Co., 695 F.2d 34, 38-40 (2d Cir.1982), vacated in part on other grounds, 718 F.2d 22 (2d Cir.1983) (en banc).

7 Am.Jur 2d Sec 12: "in case of conflict of duties, the attorney general's primary obligation is to the body politic rather than its officers, departments, commissions, or agencies."

7A C.J.S. Sec. 11(b):  "Conflicting Interests"  "between conflicting duties and interests the attorney general should choose that duty or interst most closely identified with the public good'; In case of a conflict of duties, the primary obligation of the attorney general is to the state rather than to its officers or agencies,fn and where he is charged with the duty of rquiring performance by state officials or bodies of their duties, this duty is not overcome by a conflicting requirement that he shall represent such officials or bodies in court proceedigs, but the duty to prosecute overcomes the duty to represent.fn"

Public Officers Law 17

96 NYJur2d

6 NY Jur2d Attorney at Law  "Representation of Conflicting Interests"

Sec 70:  "An attorney owes to his client undivided loyalty unhampered by his obligations to any other person.fn  The general rule is that a lawyer may not represent adverse interests or undertake to discharge conflicting dutiesfn and must avoid even the appearance of representing conflicting interests,fn except where the conflict of interest is nominal or negligible, or where there has been comple disclosurefn or consent.fn.

Grzyb v. Constantine, 182 AD 942, 582 NYS2d 298  (3rd Dept. 1992)

*   *   *

Appellants' Brief  (July 4, 2018)

 Record on Appeal:  Volume 1  

Record on Appeal:  Volume 2

Record on Appeal:  Volume 3

 

https://www.nysenate.gov/legislation/bills/2017/s8309

 

 

 

cited cases: 

Matter of Walker v. Buttermann, 164 AD3d 1018 (3rd Dept. 2018)

Foreman v. Jamesway Corp., 175 AD.2d 514 (3d Dept 1991)


 p. 4:
Campaign for Fiscal Equity v. State of New York, 8 NY3d 14, 28 (2006)

New York State Inspection v. Cuomo, 64 NY2d 233, 239 (1984)

p. 5

Parnes v. Parnes, 80 AD3d 948, 953 (3d Dep't 2011)

 

p. 7
Cliff v. Vacco, 267 AD2d 731, 732 (3d Dep't 1999)

 

Waldman v. State of NY, 140 AD3d 1448 1448, 1449 (3d Dep't 2016)

 

W. Hempstead Water Dist. v. Buckeye Pipeline Co., L.P., 152 A.D.3d 558

 

Flanagan v. Smythe,

 

Matter of Gwenyth V  (2018)  (written by Garry, with Aarons)

 

 

Maron v. Silver, 14 N.Y.3d 230 (2010)

III. Rule of Necessity

Members of the Court of Appeals are paid via the salary schedule delineated in Judiciary Law § 221 and therefore will be 249*249 affected by the outcome of these appeals. Ordinarily, when a judge has an interest in litigation, recusal is warranted. But this case falls within a narrow exception to that rule. Because no other judicial body with jurisdiction exists to hear the constitutional issues raised herein, this Court must hear and dispose of these issues pursuant to the Rule of Necessity (see Maresca v Cuomo, 64 NY2d 242, 247 n 1 [1984], appeal dismissed 474 US 802 [1985] [addressing a challenge to the State Constitution's mandatory retirement age requirements for certain state judges], citing Matter of Morgenthau v Cooke, 56 NY2d 24, 29 n 3 [1982]).

 

3rd dept:  Maron v. Silver

Although the Justices of this Court have an interest in the outcome of this case, we are required to hear and dispose of these cross appeals pursuant to the rule of necessity, which provides that "wherever it becomes necessary for a judge to sit even where he [or she] has an interest—where no provision is made for calling another in, or where no one else can take his [or her] place—it is [the judge's] duty to hear and decide" 107*107 (United States v Will, 449 US 200, 214 [1980] [internal quotation marks and citation omitted]; see Maresca v Cuomo, 64 NY2d 242, 247 n 1 [1984], appeal dismissed 474 US 802 [1985]).

 

 

May 10, 2016 -- Larabee

 

Maresca v. Cuomo, 64 N.Y.2d 242 (1984)

 Plaintiffs have pursued an expedited appeal to this court.

 

Morgenthau v. Cooke, 56 N.Y.2d 24 (1982)

 

United States v. Will, 449 U.S. 200 (1980)

 

People v. Moreno, 70 N.Y.2d 403 (1987)  (Bellacosa)
Absent a legal disqualification under Judiciary Law §14, a Trial Judge is the sole arbiter of recusal.

 

Robert Marini Builder v. Rao,
"'Absent a legal disqualification * * * a Judge is generally the sole arbiter of recusal * * *" (Matter of Murphy, 82 N.Y.2d 491, 495 [citations omitted]). The mere allegation of bias is insufficient to require recusal (see, Matter of Kidder, 255 A.D.2d 852, 853, 680 N.Y.S.2d 325, 326; Matter of Goldsmith v. De Buono, 245 A.D.2d 627). ...

Here, Loeber has failed to demonstrate that any determinations by Supreme Court were the result of bias (see,Dwyer v. De La Torre, supra; York v. York, 250 A.D.2d 837; Matter of Herskowitz v. Tompkins, 184 A.D.2d 402, 404, appeal dismissed 80 N.Y.2d 1023). "A judge has an obligation not to recuse himself or herself, even if sued in connection with his or her duties, unless he or she is satisfied that he or she is unable to serve with complete impartiality, in fact or appearance" (Spremo v. Babchik, 155 Misc.2d 796, 799, mod on other grounds 216 A.D.2d 382, lv denied 86 N.Y.2d 709, cert denied 516 U.S. 1161; see, Muka v. New York State Bar Assn., 120 Misc.2d 897, 898-899). Recusal is a matter of conscience and was not automatically required as Loeber suggests (see, Spremo v. Babchik, supra). In our view, the Trial Judge was not required to recuse himself.

 

Modica v. Modica, 15 A.D.3d 635, 636 (2d Dep’t 2005)
"The plaintiffs' motion for recusal failed to set forth proof which required the Supreme Court Justice presiding over the joint trial to recuse himself. "Absent a legal disqualification under Judiciary Law §14, a Trial Judge is the sole arbiter of recusal" (People v Moreno, 70 N.Y.2d 403, 405 [1987]). The plaintiffs failed to set forth any demonstrable proof of bias to warrant the conclusion that the Justice's failure to recuse himself was an improvident exercise of discretion (see Firestone v Siems, 272 A.D.2d 544 [2000]; Anjam v Anjam, 191 A.D.2d 531 [1993]; Manhattan School of Music v Solow, 175 A.D.2d 106 [1991])."

 

Knight v. N.Y. State & Local Ret. Sys., 266 A.D.2d 774, 776 (3d Dep’t 1999)
"The record fails to substantiate petitioner's claim of bias on the part of the Hearing Officer. Bias will not be inferred from either adverse evidentiary or procedural rulings or ultimate credibility determinations."

S.L. Green Props., Inc. v. Schaoul, 155 A.D.2d 331 (1st Dep’t 1989) "respondent-appellant requests that this court examine his objections concerning the trial court's factual determination, as well as some evidentiary rulings made by the Trial Judge, which have already been fully considered and rejected by the Appellate Term. Respondent, thus, seeks a second review of the voluminous proof introduced at trial.... . The Appellate Term affirmed the judgment of the Civil Court, holding that the proof introduced at trial was sufficient to support the Judge's determination and that there were no errors requiring a new trial. ...  respondent does not merely dispute the legal propriety of some of the trial court's evidentiary rulings but attacks the underlying motivation of the Judge. In that regard, respondent's assertion of bias and bad faith on the part of the Trial Judge seems to be based primarily, if not almost entirely, on the fact that the court made some unfavorable rulings during the course of the trial and rendered an adverse determination at the conclusion of the trial. It should be noted that while a court's legal and factual findings are always subject to challenge, the practice of impugning without proof the motives of a Judge simply because he or she does not agree with the opinions of one of the parties and/or counsel can only be deplored. Certainly, arguments otherwise lacking in merit do not somehow become meritorious by the inclusion of an accusation of malice against the court."

Gonzalez v. L’Oreal USA, Inc.,
92 A.D.3d 1158 (3d Dep't), lv. dismissed, 19 N.Y.3d 874 (2012) 

"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 [2008], lv denied 11 N.Y.3d 716 [2009] [internal quotation marks and citations omitted]; see Mokay v Mokay, 67 A.D.3d 1210, 1213 [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 [1999] [citation omitted]; accord Matter of Albany County Dept. of Social Servs. v Rossi, 62 A.D.3d 1049, 1050 [2009]; Kampfer v Rase, 56 AD3d at 926). 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 [2008]).

Aaron v. Kavanaugh,
304 AD2d 890 (3rd Dept  2003)

"...seeking a determination that all orders issued by respondent are null and void because, by virtue of his 1990 prosecution of the criminal charge against petitioner, he was statutorily disqualified by Judiciary Law § 14 from presiding over the civil actions.
Petitioners' claim is without merit. Judiciary Law § 14, in relevant part, disqualifies a judge who "sit[s] as such in, or take[s] any part in the decision of, an action, claim, matter, motion or proceeding *** in which he has been attorney or counsel." As petitioners concede, the civil litigation over which respondent presided comprise claims which are separate and distinct from the grand larceny charge which respondent had prosecuted nearly a decade earlier. Accordingly, on these facts, statutory disqualification is not required.
Where disqualification is not statutorily required, a trial judge's decision to deny a litigant's motion for recusal will not be overturned unless it was an abuse of discretion. Here, petitioner consented to nonjury proceedings before respondent and never raised the issue of respondent's disqualification until three years after the civil litigation was assigned to respondent, eight months after petitioner substituted trial counsel for his present appellate counsel and four months after he perfected his appeal from the verdict rendered in the nonjury trial. Clearly, any claim of judicial bias is unpreserved for review (see People v Darling, 276 A.D.2d 922, 924, 714 N.Y.S.2d 393 [2000], lv denied 96 N.Y.2d 733, 745 N.E.2d 1023, 722
304 A.D.2d 890, *890; 757 N.Y.S.2d 361, **361; 2003 N.Y. App. Div. LEXIS 3555, ***3555
N.Y.S.2d 800 [2001]; Matter of Nunnery v Nunnery, 275 A.D.2d 986, 987, 713 N.Y.S.2d 417 [2000]). Moreover, petitioners provide no evidence, beyond mere speculation, that respondent failed to "ma[ke] an objective determination based upon appropriate legal criteria," in the underlying civil actions despite his earlier prosecution of petitioner (People v McCulloch, 226 A.D.2d 848, 850, [*892] 640 N.Y.S.2d 914 [1996], lv denied 88 N.Y.2d 1070, 674 N.E.2d 344, 651 N.Y.S.2d 414 [1996]; see People v Moreno 70 N.Y.2d 403, 406, [**363] 516 N.E.2d 200, 521 N.Y.S.2d 663 [1987]).

--------------------

significant cases that should have been cited:

Kilmer v. Moseman, 124 A.D.3d 1195 (3rd Dept.  2015)  & here
(Garry writing decision for 4 judge panel including Devine)
Garry (with Devine on panel): rejected financial interet alleged as "remote, speculative, "possible or contingent" -- citing  (People v Whitridge, 144 App Div 493, 498 [1911]; see Langdon v Town of Webster, 270 A.D.2d 896, 896 [2000], lv denied 95 N.Y.2d 766 [2000]).

Langdon v. Town of Webster

Kampfer v. Rase, 56 A.D.3d 926, 926-927 (3rd Dept.  2008)  
(4 judge panel including Stein)

 Absent a legal disqualification under Judiciary Law §14, which is not at issue here, a trial judge is the sole arbiter of recusal and his or her decision, which lies “within the personal conscience of the court” (People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ), will not be disturbed absent an abuse of discretion (see People v. Oehler, 52 A.D.3d 955, 956– 957, 859 N.Y.S.2d 525 [2008]; People v. Saunders, 301 A.D.2d 869, 871, 753 N.Y.S.2d 620 [2003], lv. denied 100 N.Y.2d 542, 763 N.Y.S.2d 8, 793 N.E.2d 422 [2003]; Matter of Stampfler v. Snow, 290 A.D.2d 595, 596, 735 N.Y.S.2d 255 [2002] ). Moreover, “[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] ). No such showing has been made here. Inasmuch as plaintiff has failed to articulate a basis upon which to set aside Supreme Court's discretionary determination in this regard (see Matter of Greenfield, 53 A.D.3d 488, 488, 859 N.Y.S.2d 572 [2008]; cf. Matter of Stampfler v. Snow, 290 A.D.2d at 596, 735 N.Y.S.2d 255), we affirm.

 

THE APPELLATE DIVISION, 3rd Dept & JUDICIARY LAW 14

People v. Alteri,
47 A.D.3d 1070  (3rd Dept. 2008)

 A statutory disqualification under Judiciary Law §14 will deprive a judge of jurisdiction (see Wilcox v. Supreme Council of Royal Arcanum, 210 N.Y. 370, 377, 104 N.E. 624 [1914]; see also Matter of Harkness Apt. Owners Corp. v. Abdus-Salaam, 232 A.D.2d 309, 310, 648 N.Y.S.2d 586 [1996] ) and void any prior action taken by such judge in that case before the recusal (see People v. Golston, 13 A.D.3d 887, 889, 787 N.Y.S.2d 185 [2004], lv. denied 5 N.Y.3d 789, 801 N.Y.S.2d 810, 835 N.E.2d 670 [2005]; Matter of Harkness Apt. Owners Corp. v. Abdus– Salaam, 232 A.D.2d at 310, 648 N.Y.S.2d 586). In fact, “ ‘a judge disqualified under a statute cannot act even with the consent of the parties interested, because the law was not designed merely for the protection of the parties to the suit, but for the general interests of justice’ ” (Matter of Beer Garden v. New York State Liq. Auth., 79 N.Y.2d 266, 278–279, 582 N.Y.S.2d 65, 590 N.E.2d 1193 [1992], quoting Matter of City of Rochester, 208 N.Y. 188, 192, 101 N.E. 875 [1913] ).
 Here, it is uncontested that there was no statutory disqualification but a voluntary recusal to avoid the appearance of impropriety. “[W]hen recusal is sought based upon ‘impropriety as distinguished from legal disqualification, the judge ... is the sole arbiter’ ” (People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987], quoting People v. Patrick, 183 N.Y. 52, 54, 75 N.E. 963 [1905] ). Even though such determination will not deprive a judge of jurisdiction (see Matter of Fitzgerald v. Wells, 9 A.D.2d 812, 812, 192 N.Y.S.2d 719 [1959], lv. denied 7 N.Y.2d 711, 199 N.Y.S.2d 1025, 166 N.E.2d 517 [1960], appeal dismissed 9 N.Y.2d 864, 216 N.Y.S.2d 686, 175 N.E.2d 819 [1961] ), the analysis is not so abrupt. While “[a] search warrant is a process of the court” (People v. Hickey, 40 N.Y.2d 761, 762, 390 N.Y.S.2d 42, 358 N.E.2d 868 [1976]; see CPL 690.05[2]) and a local court may properly issue such warrant when it has geographic, but not, necessarily, trial jurisdiction (see People v. Hickey, 40 N.Y.2d at 762–763, 390 N.Y.S.2d 42, 358 N.E.2d 868; People v. Epstein, 47 A.D.2d 661, 661–662 [1975] ), a fundamental constitutional requirement of a valid search warrant is that it be issued by a neutral, detached magistrate (see People v. Bilsky, 95 N.Y.2d 172, 177, 712 N.Y.S.2d 84, 734 N.E.2d 341 [2000]; People v. Potwora, 48 N.Y.2d 91, 94, 421 N.Y.S.2d 850, 397 N.E.2d 361 [1979] ). In light of the voluntary recusal of the Town of Ticonderoga justices to avoid impropriety, we cannot conclude that the review and signing of the warrant by one of such justices met the constitutional imprimatur of having been issued by a neutral and detached magistrate. For this reason, we find that the warrant was improperly issued and that all evidence resulting therefrom was properly suppressed.

 

Matter of Harkness Apt. Owners Corp. v. Abdus-Salaam, 232 AD2d 308 (1996)

People v. Berry,

People v. Alomar  47 A.D.3d 1070 (1999) -- Smith
 "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 (see, Tumey v. State of Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749), or where a clash in judicial roles is seen to exist (see, In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942, supra)."

Beer Garden v. NYS Liquor  79 N.Y.2d 266   (1992)  here  -- Kaye

Judiciary Law § 14 provides that no Judge shall "sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he [or she] is a party, or in which he [or she] has been attorney or counsel." While we recognize that this provision pertains only to courts of record, the common-law rule of disqualification embodied by the statute has been applied to administrative tribunals exercising quasi-judicial functions (see, e.g., Matter of City of Rochester, 208 N.Y. 188, 192, rearg denied 209 N.Y. 529; Matter of Washington County Cease v Persico, 120 Misc 2d 207, 228-229, affd 99 AD2d 321, affd on other grounds 64 N.Y.2d 923).
...

“ ‘Next in importance to the duty of rendering a righteous judgment, is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge.’ So vital is deemed the observance of this principle that it has been held that a judge disqualified under a statute cannot act even with the consent of the parties interested, because the law was not designed merely for the protection of the parties to the suit, *279 but for the general interests of justice.” (Matter of City of Rochester, supra, 208 N.Y. at 192, 101 N.E. 875, quoting People ex rel. Roe & Roe v. Suffolk Common Pleas, 18 Wend 550, 552; see also, Matter of Pelaez v. Waterfront ***71 **1199 Commn., 88 A.D.2d 443, 447–448, 454 N.Y.S.2d 132.)

General Motors Corp. v. Rosa, 1993

"The Rule of Necessity
The participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions (see, US Const, 14th Amend, § 1; NY Const, art I, § 6; see also, Matter of 1616 Second Ave. Rest. v New York State Liq. Auth., 75 N.Y.2d 158, 161; Redish and Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale LJ 455, 475-505 [1986]). Judicial independence contributes not only to accurate determinations but also to the appearance of fairness, equality between the parties, and predictability and rationality of result (id., at 482-491).

The Rule of Necessity provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard (see, Matter of Morgenthau v Cooke, 56 N.Y.2d 24, 29-31, n 3; Maresca v Cuomo, 64 N.Y.2d 242, 247, n 1, appeal dismissed 474 U.S. 802; Matter of Ryers, 72 N.Y. 1, 10-15; 3 Davis, Administrative Law Treatise § 19:9 [2d ed]; Schwartz, Administrative Law § 6.19 [2d ed]). Thus, where all members of the adjudicative body are disqualified and no other body exists to which the appeal might be referred for disposition, the Rule of Necessity ensures that neither the parties nor the Legislature will be left without the remedy provided by law (see, Trade Commn. v Cement Inst., 333 U.S. 683, 700-703, reh denied 334 U.S. 839; Matter of Morgenthau, 56 NY2d, at 29, n 3; Sharkey v Thurston, 268 N.Y. 123, 128).

Given the principle at stake, "necessity" must be construed strictly, in favor of delegating judicial authority to others whenever possible (see, Resnik, On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 S Cal L Rev 1877, 1890-1896, 1935-1937 [1988]).


Pines v. State of New York,115 A.D.3d 80 (2nd Dept 2014)

Matter of City of Rochester

Wilcox v. Supreme Council of Royal Arcanum,
210 N.Y. 370 (1914)

Orange v. Storm King  (1920)

"The Rule of Necessity: Is Judicial Non-Disqualification Really Necessary?
Hofstra Law Review, Vol 24 Issue 3 (1996) Thomas McKevitt


Thomas McKevitt

https://swc-law.com/att_Thomas_McKevitt.html

 

Recusal and Recompense:  Jeffrey Fuit

22 NYCRR 81.1

Rattley v. NY City Police Dept.

Lazzari v. Town of Eastchester

Terzo v. Hospital for Special Surgery

Brown v. Gov't Employees, Inc.


In re Wait, 67 N.Y.2d 15 (N.Y. 1986)

 

Matter of Myers, 67 N.Y.2d 550, 553 (N.Y. 1986)

 

cited cases from respondents' brief
 

Matter of Wittenberg Sportsmen's Club, Inc. v. Town of Woodstock Planning Board, 16 AD3d 991, 993 (3d Dep't 2005)

Olim Realty v. Lanaj Home Furnishings, 65 A.D.3d 1318, 1320 (2d Dep't 2009)

Hadden v. Con Ed, 45 N.Y.2d 466 (1978)

-------

USA v. Terry, 806 Fed Supp. 490, 494 (SDNY 1992)

the Attorney General acts parens patriae, asserting a "quasi sovereign" interest for the common good of the people of the State of New York. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600-08, 102 S. Ct. 3260, 3265-69, 73 L. Ed. 2d 995 (1982); People by Abrams v. 11 Cornwell Co., 695 F.2d 34, 38-40 (2d Cir.1982), vacated in part on other grounds, 718 F.2d 22 (2d Cir.1983) (en banc).

7 Am.Jur 2d Sec 12: "in case of conflict of duties, the attorney general's primary obligation is to the body politic rather than its officers, departments, commissions, or agencies."

7A C.J.S. Sec. 11(b):  "Conflicting Interests"  "between conflicting duties and interests the attorney general should choose that duty or interst most closely identified with the public good'; In case of a conflict of duties, the primary obligation of the attorney general is to the state rather than to its officers or agencies,fn and where he is charged with the duty of rquiring performance by state officials or bodies of their duties, this duty is not overcome by a conflicting requirement that he shall represent such officials or bodies in court proceedigs, but the duty to prosecute overcomes the duty to represent.fn"

Public Officers Law 17

96 NYJur2d

6 NY Jur2d Attorney at Law  "Representation of Conflicting Interests"

Sec 70:  "An attorney owes to his client undivided loyalty unhampered by his obligations to any other person.fn  The general rule is that a lawyer may not represent adverse interests or undertake to discharge conflicting dutiesfn and must avoid even the appearance of representing conflicting interests,fn except where the conflict of interest is nominal or negligible, or where there has been comple disclosurefn or consent.fn.

Grzyb v. Constantine, 182 AD 942, 582 NYS2d 298  (3rd Dept. 1992)

*   *   *

Appellants' Brief  (July 4, 2018)

 Record on Appeal:  Volume 1  

Record on Appeal:  Volume 2

Record on Appeal:  Volume 3

 

https://www.nysenate.gov/legislation/bills/2017/s8309

 

 

 

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