

Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, Intl. Assn. of Firefighters, AFL-CIO (2019 NY Slip Op 06391)





Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, Intl. Assn. of Firefighters, AFL-CIO


2019 NY Slip Op 06391


Decided on August 28, 2019


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on August 28, 2019
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
RUTH C. BALKIN
JOSEPH J. MALTESE, JJ.


2017-09919
 (Index No. 70952/15)

[*1]In the Matter of City of Yonkers, respondent,
vYonkers Fire Fighters, Local 628, International Association of Firefighters, AFL-CIO, et al., appellants.


Archer, Byington, Glennon & Levine, LLP, Melville, NY (Richard Corenthal of counsel), for appellants.
Coughlin & Gerhart, LLP, Binghamton, NY (Paul J. Sweeney of counsel), for respondent.

DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated September 26, 2015, Yonkers Fire Fighters, Local 628, International Association of Firefighters, AFL-CIO, and Christopher Giardini appeal from an order of the Supreme Court, Westchester County (Susan Cacace, J.), entered August 16, 2017. The order denied those parties' motion for recusal of the Supreme Court Justice presiding over this proceeding, and to vacate an order and judgment (one paper) of the same court dated June 10, 2016.
ORDERED that the order is affirmed, with costs.
The petitioner commenced this proceeding pursuant to CPLR article 75 to vacate an arbitration award dated September 26, 2015, which, inter alia, determined that the petitioner had improperly terminated the employment of the appellant Christopher Giardini with the City of Yonkers Fire Department. In an order and judgment dated June 10, 2016, the Supreme Court granted the petition and vacated the arbitration award. Approximately nine months later, the appellants moved for recusal of the Supreme Court Justice presiding over this proceeding, and to vacate the order and judgment issued by her on June 10, 2016. In the order appealed from, the Supreme Court denied the motion.
We agree with the Supreme Court's denial of the appellants' motion, inter alia, for mandatory disqualification of the Supreme Court Justice pursuant to Judiciary Law § 14 and Canon 3(E)(1)(d)(i) of the Code of Judicial Conduct (22 NYCRR § 100.3), and, upon her disqualification, to vacate the order and judgment of the same court dated June 10, 2016. Judiciary Law § 14 prohibits a trial judge from presiding over any claim "if he [or she] is related by consanguinity or affinity to any party to the controversy within the sixth degree." Similarly, Code of Judicial Conduct Canon 3(E)(1)(d)(i) calls upon a judge to disqualify himself or herself in a proceeding in which a person "known by the judge to be within the sixth degree of relationship" to the judge is "a party to the proceeding." Here, the record does not reveal that any person related to the Supreme Court Justice is a party to this proceeding. Thus, mandatory disqualification pursuant to Judiciary Law § 14 and Canon 3(E)(1)(d)(i) of the Code of Judicial Conduct was not required (see People v Leonard, 37 AD3d 1148, 1149; People v Roberts, 6 AD3d 942, 942; People v Griffiths, 155 AD2d 777, 779).
With regard to the question of discretionary recusal, we likewise agree with the [*2]Supreme Court's denial of the appellants' request for recusal of the Supreme Court Justice based on alleged impropriety or bias. Absent a legal disqualification under Judiciary Law § 14, "the determination concerning a motion seeking recusal based on alleged impropriety, bias, or prejudice is within the discretion and  the personal conscience of the court'" (Daniels v City of New York, 96 AD3d 895, 895, quoting People v Moreno, 70 NY2d 403, 405; see Sassower v Gannett Co., Inc., 109 AD3d 607, 609). "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, or where a clash in judicial roles is seen to exist" (People v Alomar, 93 NY2d 239, 246 [citation omitted]; see Ralis v Ralis, 146 AD3d 831, 833; Matter of Khan v Dolly, 39 AD3d 649, 650-651). The denial of a recusal motion will constitute an improvident exercise of discretion only where the movant puts forth demonstrable proof of the judge's bias or prejudgment (see Matter of Rodriguez v Liegey, 132 AD3d 880, 880-881; Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 465, 466; Modica v Modica, 15 AD3d 635, 636). " [A]bsent a showing of actual bias or a statutory basis for recusal, proceedings conducted prior to a motion for recusal, or prior to a voluntary withdrawal from the case, remain valid'" (Ulrich v Estate of Zdunkiewicz, 8 AD3d 1014, 1014, quoting Rochester Community Individual Practice Assn. v Excellus Health Plan, 305 AD2d 1007, 1008; see Matter of Kurz v Justices of Supreme Ct. of N.Y., Kings County, 228 AD2d 74, 76).
Here, the appellants failed to present any evidence that the Supreme Court Justice had any improper interest in the outcome of this proceeding or harbored actual bias against the appellants so as to warrant the conclusion that her denial of their recusal request was an improvident exercise of discretion (see Matter of Bianco v Bruce-Ross, 151 AD3d 716, 717-718; Matter of Imre v Johnson, 54 AD3d 427, 428; Schreiber-Cross v State of New York, 31 AD3d 425; Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d at 466).
Accordingly, the appellants' motion was properly denied.
MASTRO, J.P., RIVERA, BALKIN and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


