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

1276
CA 13-00539
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND SCONIERS, JJ.


AFFINITY ELMWOOD GATEWAY PROPERTIES LLC,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

AJC PROPERTIES LLC, ET AL., DEFENDANTS,
EVELYN BENCINICH, SUSAN M. DAVIS, STEVEN
GATHERS, ANGELINE C. GENOVESE, SANDRA GIRAGE
AND LORENZ M. WUSTNER, DEFENDANTS-APPELLANTS.
---------------------------------------------
ARTHUR J. GIACALONE, APPELLANT.
(APPEAL NO. 1.)


ARTHUR J. GIACALONE, EAST AURORA, APPELLANT PRO SE, AND FOR
DEFENDANTS-APPELLANTS.

LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (BRENDAN H. LITTLE OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered February 21, 2013. The order, inter alia, sua
sponte precluded nonparty Arthur J. Giacalone, Esq., from
communicating with nonparty Kaleida Health concerning the subject
matter of this litigation and denied the cross motion of
defendants-appellants for sanctions.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the second ordering
paragraph and as modified the order is affirmed without costs in
accordance with the following Memorandum: Plaintiff commenced this
action to extinguish a restrictive covenant in a deed. In appeal No.
1, defendants-appellants (hereafter, defendants), and their attorney,
nonparty Arthur J. Giacalone, Esq. (collectively, appellants), appeal
from those parts of an order that, sua sponte, precluded Giacalone
from communicating with nonparty Kaleida Health (Kaleida) pursuant to
CPLR 3103 concerning the subject matter of this litigation, and also
denied defendants’ cross motion for sanctions. In appeal No. 2,
defendants appeal from an order denying their cross motion for
recusal.

     In appeal No. 1, we agree with appellants that Supreme Court
abused its discretion in precluding Giacalone from communicating with
Kaleida pursuant to CPLR 3103. Plaintiff sought, inter alia, to
enjoin Giacalone from communicating with Kaleida on the ground that
                                 -2-                          1276
                                                         CA 13-00539

Giacalone had violated the New York Rules of Professional Conduct (22
NYCRR 1200.0 et seq.), and the order to show cause bringing on the
motion contained a temporary restraining order (TRO) enjoining
Giacalone from engaging in certain conduct. By the order in appeal
No. 1, the court, inter alia, denied that part of plaintiff’s motion
based on the alleged violation of the Rules of Professional Conduct
and vacated the TRO, but the court also sua sponte granted the relief
with respect to Kaleida pursuant to CPLR 3103. In pertinent part,
that statute permits the court to issue “a protective order denying,
limiting, conditioning or regulating the use of any disclosure device”
(CPLR 3103 [a]). Here, however, there was no evidence establishing
that Giacalone had misused the discovery process. Indeed, the
documents submitted in support of plaintiff’s order to show cause do
not mention the discovery process, nor do they contain any evidence
establishing that the conduct complained of was related to any
information obtained in that process. Thus, inasmuch as “plaintiff
failed to show that there was anything unreasonable or improper about
defendants’ demands” or the use of discovery materials by defendants
and Giacalone (Response Personnel, Inc. v Aschenbrenner, 77 AD3d 518,
519), and there was no indication that “the disclosure process [was]
used to harass or unduly burden a party” or a witness (Barouh Eaton
Allen Corp. v International Bus. Machs. Corp., 76 AD2d 873, 874; see
Seaman v Wyckoff Hgts. Med. Ctr., Inc., 25 AD3d 598, 599, lv dismissed
7 NY3d 864), the court abused its discretion in precluding Giacalone
from communicating with Kaleida (cf. Jones v Maples, 257 AD2d 53, 56-
57). We therefore modify the order by vacating the ordering paragraph
in which that relief was granted. In light of our determination, we
do not consider appellants’ further contentions concerning preclusion.

     Also by the order in appeal No. 1, the court vacated the TRO, and
thus any issue raised by appellants concerning “the validity of the
grant of [the TRO] . . . is for all intents and purposes rendered
moot” (Stubbart v County of Monroe, 58 AD2d 25, 29, lv denied 42 NY2d
808; see generally Welch Foods, Inc. v Wilson, 262 AD2d 949, 950-951).
Contrary to appellants’ contention, the exception to the mootness
doctrine does not apply (see generally Matter of Hearst Corp. v Clyne,
50 NY2d 707, 714-715).

     Contrary to appellants’ further contention, the court did not
improvidently exercise its discretion in denying that part of their
cross motion that sought the imposition of sanctions (see generally 22
NYCRR 130-1.1 [a]).

     Finally, contrary to defendants’ contention in appeal No. 2, the
court did not abuse its discretion in denying their recusal motion.
“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 unless it was an abuse of
discretion” (People v Moreno, 70 NY2d 403, 405-406; see Curto v
Zittel’s Dairy Farm, 106 AD3d 1482, 1482-1483). Here, defendants’
“claim of bias is not supported by the record and is thus insufficient
to require recusal. There is no evidence that any alleged bias had
result[ed] in an opinion on the merits [of this case] on some basis
other than what the [J]udge learned from [his] participation in the
                                 -3-                          1276
                                                         CA 13-00539

case” (Matter of McLaughlin v McLaughlin, 104 AD3d 1315, 1316
[internal quotation marks omitted]; see United States v Grinnell
Corp., 384 US 563, 583; Matter of Petkovsek v Snyder, 251 AD2d 1086,
1086-1087).




Entered:   January 3, 2014                     Frances E. Cafarell
                                               Clerk of the Court
