                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   518783
________________________________

In the Matter of CONCORD
   ASSOCIATES, L.P., et al.,
                    Petitioners,
      v

FRANK J. LaBUDA, as Acting
   Justice of the Supreme                   MEMORANDUM AND JUDGMENT
   Court,
                    Respondent,
      and

EPT CONCORD, LLC, et al.,
                    Respondents.
________________________________


Calendar Date:   September 9, 2014

Before:   Lahtinen, J.P., Rose, Egan Jr., Lynch and Clark, JJ.

                             __________


      DelBello Donnellan Weingarten Wise Wiederkehr, LLP, White
Plains (Robert Hermann of counsel), for petitioners.

      Morrison Cohn, LLP, New York City (Y. David Scharf of
counsel), for EPT Concord, LLC and another, respondents.

                             __________


Egan Jr., J.

      Proceeding pursuant to CPLR article 78 (initiated in this
Court pursuant to CPLR 506 [b] [1]) to, among other things,
direct respondent Acting Justice of the Supreme Court to recuse
himself from presiding over a declaratory judgment action.

      Petitioners and respondents EPT Concord, LLC and EPT
Concord II, LLC (hereinafter collectively referred to as EPT)
                               -2-                518783

previously were engaged in a cooperative effort to site a casino
resort in Sullivan County. A dispute subsequently arose between
those parties regarding that project, prompting petitioners to
commence a declaratory judgment action against EPT in Supreme
Court, Sullivan County, which was assigned to respondent Acting
Justice of the Supreme Court (hereinafter respondent).
Thereafter, various motions were made in the context of that
action. In the interim, EPT advanced its own proposal to site a
casino in Sullivan County, thereby placing petitioners and EPT in
direct competition for casino development in that region.

      In early 2014, while those motions were pending,
petitioners became aware of public comments attributed to
respondent's spouse, Kathleen LaBuda, a member of the Sullivan
County Legislature, wherein she indicated, among other things,
that she did not support siting a casino in the Town of
Mamakating, Sullivan County, where she and respondent allegedly
reside, and expressed a preference for the casino proposal
advanced by EPT. As a result, petitioners made an oral motion
requesting that respondent recuse himself from presiding over the
declaratory judgment action, asserting that Kathleen LaBuda's
public comments regarding certain of the casino proposals created
the appearance of a conflict. After noting that he had neither
read any newspaper articles about his spouse's comments nor had
any conversations with her about proposed casino development,
respondent assured the parties that the fact that his spouse
might be favoring a particular developer in the casino business
would have no impact upon his impartiality and fairness and
issued a bench decision denying petitioners' application.
Petitioners thereafter commenced, by order to show cause, the
instant CPLR article 78 proceeding in this Court seeking, among
other things, an order directing respondent to recuse himself
from presiding over any further proceedings in the context of the
declaratory judgment action.1

      A CPLR article 78 proceeding is not an appropriate vehicle
for seeking review of issues that could be raised upon a direct
appeal (see Matter of Wisniewski v Michalski, 114 AD3d 1188, 1188


    1
        Respondent did not appear in this proceeding.
                                -3-                518783

[2014]; Matter of Aarismaa v Bender, 108 AD3d 1203, 1204 [2013];
Matter of Estate of Rappaport v Riordan, 66 AD3d 1018, 1018
[2009]), including the denial of a party's request that a judge
recuse himself or herself from presiding over a particular matter
(see Matter of Daniels v Lewis, 95 AD3d 1011, 1012 [2012]).
Rather, petitioners' remedy – at that point in time – was to
either reduce respondent's bench decision on the recusal motion
to a written order, serve a copy of that order and the
corresponding notice of entry upon EPT and timely file an appeal
therefrom (see Matter of Warburton v Polito, 242 AD2d 979, 979
[1997]; cf. Matter of Marc D. v Fulton County Dept. of Social
Servs., 79 AD3d 1534, 1535 [2010]) or, alternatively, await
decision on the underlying summary judgment motions and, if
aggrieved thereby, challenge the denial of their recusal motion
upon a direct appeal from that order.2 Accordingly, we are
required to dismiss this proceeding.3

        Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.



    2
        Counsel advised this Court at oral argument that
respondent subsequently rendered a decision on the then-pending
motions that, among other things, awarded summary judgment to
EPT. Accordingly, petitioners now must challenge the denial of
their recusal motion in the context of a direct appeal from the
order granting summary judgment in favor of EPT.
    3
        We note that while we discern no statutory basis for
respondent's disqualification in this matter (see Judiciary Law
§ 14), the Rules Governing Judicial Conduct (22 NYCRR part 100)
do compel a judge to "act at all times in a manner that promotes
public confidence in the integrity and impartiality of the
judiciary," to refrain from "allow[ing] family, social, political
or other relationships to influence [his or her] judicial conduct
or judgment" (22 NYCRR 100.2 [A], [B]) and "to avoid even the
appearance of impropriety" (Matter of George [State Commn. on
Jud. Conduct], 22 NY3d 323, 331 [2013]; see 22 NYCRR 100.2).
Further, while the decision of whether to recuse oneself from a
particular matter lies within the discretion of the deciding
judge, that discretion is not unlimited.
                        -4-                  518783

ADJUDGED that the petition is dismissed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
