Plaintiffs move for an order of recusal. The following papers were read: June 15, 2020 Correspondence of Joseph A. Maria, Esq — 1 – 2 Annexed Exhibits June 16, 2020 Correspondence of Langdon C. Chapman, Esq 3 Joseph A. Maria, Esq.’s “Sur-Reply” Affirmation in Support 4 of Recusal Upon the foregoing papers it is hereby ORDERED that the plaintiffs’ motion for recusal is denied. In this breach of contract action the plaintiffs seek the recusal of the undersigned. The primary basis of plaintiffs’ application is that defendant’s counsel, as well as counsel’s wife, are listed as “Facebook” friends on the undersigned’s election campaign Facebook page circa 2015. Ironically, plaintiffs’ counsel hosted two (2) campaign election events in 2019 for the prior justice assigned to this case and did not view that as a basis for recusal. Counsel actually argued that the recusal of that prior judge would not have been appropriate, despite counsel having hosted campaign election events.1 Notwithstanding plaintiffs’ claim to the contrary, “the mere status of being a Facebook friend, without more, is an insufficient basis to require recusal” (NY Jud. Adv. Op. 13-39 [N.Y.Adv.CommJud.Eth.], 2013 WL 3166329). Further, a judge’s impartiality may not “reasonably be questioned (see 22 NYCRR 100.3[E] [1]” and there is no “ appearance of impropriety (see 22 NYCRR 100.2[A]) based solely on having previously ‘friended’ certain individuals who are now involved in some manner in a pending action” (NY Jud. Adv. Op. 13-39 [N.Y.Adv.Comm.Jud.Eth.], 2013 WL 3166329). As a secondary basis for recusal, plaintiffs claim that an Orange County Judge and colleague of the Court is a “potential witness” in this matter. The history of the instant case includes a claim by plaintiffs that defense counsel should be disqualified as counsel for the defendant because he too was going to be called as a witness by the plaintiffs. Justice Steven Milligram, before his untimely passing, denied that application and found that plaintiffs’ motion in that regard “borders on frivolous and fails to demonstrate that the disqualification…is warranted.” There appears to be a history of such claims being made in the instant matter. In any event, another local judge being a “potential witness” is an insufficient basis for the undersigned’s recusal. The Summons & Complaint, dated September 16, 2016, was filed in the instant matter on September 23, 2016. Upon the case being assigned, plaintiffs moved for the matter to be transferred to Westchester County. The request for transfer was reviewed and denied by the Honorable Alan Scheinkman. It appears that plaintiffs have been actively exercising their rights to apply for the transfer of venue, and to remove or to maintain judges or counsel assigned to the case since the commencement of this action. A court has a duty to avoid any appearance of impropriety. Appearances of impropriety can come in different forms. One form is that the judge cannot be fair and impartial due to some potential or perceived conflict of interest; another is that a party can change a forum or a judge that is more favorable to that party by “manipulating” the court system. It is imperative that courts guard against all appearances of impropriety. Under the circumstances of the instant matter, plaintiffs’ application for recusal gives the appearance of judge shopping. “Where, as here, ‘no legal basis for disqualification under Judiciary Law §14 is alleged, a Court is the sole arbiter of the need for recusal, and its decision is a matter of discretion and personal conscience’” (Rodriguez v. Liegey, 132 AD3d 880 [2nd Dept., 2015] quoting Matter of Grucci v. Villanti, 109 AD3d 626, 627, 969 NYS2d 493 and citing People v. Moreno, 70 NY2d 403, 405, 521 NYS2d 663, 516 NE2d 200). The plaintiffs have “failed to set forth any demonstrable proof of bias or prejudgment of the matter to warrant recusal” (Id. citing Matter of Grucci v. Villanti, 108 AD3d at 627, 969 NYS2d 493; Matter of Alyssa A. [Michelle N. - Sandra N.], 79 AD3d 740, 741-742, 913 NYS2d 690; Vogelgesang v. Vogelgesang, 71 AD3d 1131, 898 NYS2d 211; Matter of O’Donnell v. Goldenberg, 68 AD3d 1000, 890 NYS2d 331). Accordingly, the plaintiffs’ motion for an order of recusal must be denied (see, for e.g., City of Yonkers v. Yonkers Fire Fighters, Local 628, 175 AD3d 676 [2nd Dept., 2019]). The foregoing constitutes the Decision and Order of this Court. Dated: October 9, 2020
