        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

378
CA 11-02445
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ.


PATRICIA CURTO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ZITTEL’S DAIRY FARM, JOHN ZITTEL, SANDY
ZITTEL, THOMAS DEXTER AND JEFFREY GASPER,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 1.)


PATRICIA CURTO, PLAINTIFF-APPELLANT PRO SE.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered March 8, 2011. The order denied the motion of
plaintiff for recusal.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: These four consolidated pro se appeals arise from an
action seeking damages for, inter alia, employment discrimination. In
appeal No. 1, plaintiff appeals from an order denying her motion
seeking recusal or disqualification of the Supreme Court Justice
assigned to conduct the trial. In appeal No. 2, she appeals from an
order denying her motion for, inter alia, vacatur of the jury verdict
and judgment notwithstanding the verdict or a new trial. In appeal
No. 3, she appeals from a judgment, entered upon a jury verdict,
dismissing the complaint. In appeal No. 4, she appeals from an order
denying her motion that apparently sought, inter alia, leave to renew
the motions at issue in appeal Nos. 1 and 2.

     Initially, we note that the appeals from the orders in appeal
Nos. 1 and 2 must be dismissed because the right to appeal from those
intermediate orders terminated upon the entry of the judgment in
appeal No. 3 (see Murphy v CSX Transp., Inc. [appeal No. 1], 78 AD3d
1543, 1543; Smith v Catholic Med. Ctr. of Brooklyn & Queens, 155 AD2d
435, 435). The issues raised in appeal Nos. 1 and 2 will be
considered upon the appeal from the judgment in appeal No. 3 (see
Matter of Aho, 39 NY2d 241, 248).

     With respect to the merits, plaintiff’s contention that the court
should have granted her motion for recusal because the court was
biased against her lacks merit. “ ‘Absent a legal disqualification
under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal
. . . [and a] court’s decision in this respect may not be overturned
                                 -2-                           378
                                                         CA 11-02445

unless it was an abuse of discretion’ ” (People v Williams, 66 AD3d
1440, 1441, lv dismissed 13 NY3d 911, quoting People v Moreno, 70 NY2d
403, 405-406). There is no allegation of a legal disqualification,
and we perceive no abuse of discretion in the denial of plaintiff’s
motion.

     We reject plaintiff’s contention that the court erred in
dismissing certain causes of action at the conclusion of the trial.
Plaintiff’s request for punitive damages was properly dismissed by the
court inasmuch as such damages are not recoverable in this employment
discrimination action pursuant to Executive Law § 297 (9) (see
Thoreson v Penthouse Intl., 80 NY2d 490, 494, rearg denied 81 NY2d
835; Harris v Chen, 283 AD2d 976, 976; McIntyre v Manhattan Ford,
Lincoln-Mercury, 256 AD2d 269, 271, appeal dismissed 93 NY2d 919, lv
denied 94 NY2d 753). With respect to plaintiff’s gender-based unequal
pay claim, she was required to establish that she is a member of a
protected class, that she was paid less in such position than others
similarly situated, and that her receipt of lower wages occurred under
circumstances giving rise to an inference of sex discrimination (see
generally Ferrante v American Lung Assn., 90 NY2d 623, 629).
Assuming, arguendo, that plaintiff’s evidence that the wages of two
other employees exceeded hers by two dollars per hour was sufficient
to meet the first prong of that standard, we conclude that the
evidence in the record establishes that those employees were more
experienced than plaintiff when they were hired, and thus she failed
to meet the third prong (see Kent v Papert Cos., 309 AD2d 234, 244-
245; cf. Matter of Classic Coach v Mercado, 280 AD2d 164, 170, lv
denied 97 NY2d 601). Consequently, the court did not err in
dismissing that claim before submitting the case to the jury.

     Contrary to plaintiff’s further contention, the court did not err
in denying her motion to set aside the jury’s verdict of no cause of
action as against the weight of the evidence. Plaintiff failed to
establish that “ ‘the evidence so preponderated in [her] favor . . .
that the verdict could not have been reached on any fair
interpretation of the evidence’ ” (Todd v PLSIII, LLC--We Care, 87
AD3d 1376, 1377; see Lolik v Big V Supermarkets, 86 NY2d 744, 746).

     Insofar as we are able to do so based on the record before us, we
have considered plaintiff’s remaining contentions, including those
concerning the court’s pretrial rulings, trial rulings, and the
verdict, and we conclude that they are without merit.

     Finally, with respect to the motion at issue in appeal No. 4, the
record does not contain sufficient information to enable us to
determine whether the court properly denied that motion seeking, inter
alia, leave to renew, and plaintiff, “ ‘as the appellant, . . . must
suffer the consequences’ of submitting an incomplete record”
(Rodriguez v Ward, 43 AD3d 640, 641).


Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
