Almeda Holding Co. v. Holmberg

24 A.D.3d 899, 804 N.Y.S.2d 702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2005
• Status: Published

Opinion

Carpinello J.

Appeal from an order of the Supreme Court (O’Shea, J.), entered October 27, 2004 in Tompkins County, which denied plaintiff’s motion to vacate a prior order of the court.

Supreme Court dismissed this action in May 2004 because plaintiff failed to appear by an attorney as required by CPLR 321 (a). The court determined that plaintiffs attempt to assign the matter to Betty Muka, an individual who has been enjoined from bringing any pro se action in this state without prior judicial approval (see Muka v Pollock, Sup Ct, Tompkins County, Jan. 22, 1990, Harlem, J.; Muka v Hancock, Estabrook, Ryan, Shove & Hust, 120 Misc 2d 146 [1983]), was insufficient to save the matter from dismissal. However, the propriety of the May 2004 order is not now before us.

Rather, the limited issue before this Court is the propriety of an October 2004 order denying Muka’s motion to “vacate” the prior order. The basis of this motion, treated by the court as a motion to reargue, was Muka’s allegations that Supreme Court should have recused itself. Finding the allegations concerning recusal to be baseless and unsubstantiated, Supreme Court did not err in denying the motion.

Cardona, P.J., Mercure, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.