Gabay v. Bender

Appellate Division of the Supreme Court of New York

Gabay v. Bender

34 A.D.3d 207, 823 N.Y.S.2d 389

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 2, 2006

StatusPublished

Cited by7 cases

This text of 34 A.D.3d 207 (Gabay v. Bender) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gabay v. Bender, 34 A.D.3d 207, 823 N.Y.S.2d 389 (N.Y. Ct. App. 2006).

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Opinion

Orders, Supreme Court, New York County (Carol Edmead, J.), entered April 6 and June 2, 2006, which, in an action for partition and sale of a residential apartment building, inter alia, granted plaintiffs motion for the keys to individual apartments in the building, and denied defendant’s motion for recusal, unanimously affirmed, with costs.

The issue of whether the Special Referee could properly consider plaintiffs right to the keys under the order of reference was rendered academic by plaintiffs submission of a formal motion to the court for the keys. That motion was properly granted. Any co-owner of real property has the right to enter upon the common estate and take possession of the whole thereof, subject only to the equal right of co-owners in interest with whose possession he or she may not interfere (Jemzura v Jemzura, 36 NY2d 496, 503 [1975]). Such right of access includes the right to allow invitees onto the property (Race v Meyer, 219 AD2d 67, 71 [1996]). We reject defendant’s argument that to allow real estate brokers and prospective purchasers into the building, as plaintiff proposes, would be to subvert the interlocutory judgment directing a sale at public auction. Moreover, we note that on oral argument defendant’s counsel conceded that defendant’s predominant motivation for at least some of the conduct at issue was to influence downward the ultimate selling price of the property, as she intends to purchase plaintiffs share at the auction.

Nor does defendant show any agreement whatsoever Hmiting plaintiffs right of access, assuming its enforceability in the present context. The ex parte communications between the court and the Special Referee concerning the latter’s authority to consider plaintiffs right to the keys is not a ground for recusal. “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of ‘nonjuridical data’ ” (People v Moreno, 70 NY2d 403, 405 [1987]). Concur—Buckley, P.J., Tom, Marlow, Nardelli and Williams, JJ.

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Orders, Supreme Court, New York County (Carol Edmead, J.), entered April 6 and June 2, 2006, which, in an action for partition and sale of a residential apartment building, inter alia, granted plaintiffs motion for the keys to individual apartments in the building, and denied defendant’s motion for recusal, unanimously affirmed, with costs.

The issue of whether the Special Referee could properly consider plaintiffs right to the keys under the order of reference was rendered academic by plaintiffs submission of a formal motion to the court for the keys. That motion was properly granted. Any co-owner of real property has the right to enter upon the common estate and take possession of the whole thereof, subject only to the equal right of co-owners in interest with whose possession he or she may not interfere (Jemzura v Jemzura, 36 NY2d 496, 503 [1975]). Such right of access includes the right to allow invitees onto the property (Race v Meyer, 219 AD2d 67, 71 [1996]). We reject defendant’s argument that to allow real estate brokers and prospective purchasers into the building, as plaintiff proposes, would be to subvert the interlocutory judgment directing a sale at public auction. Moreover, we note that on oral argument defendant’s counsel conceded that defendant’s predominant motivation for at least some of the conduct at issue was to influence downward the ultimate selling price of the property, as she intends to purchase plaintiffs share at the auction.

Nor does defendant show any agreement whatsoever Hmiting plaintiffs right of access, assuming its enforceability in the present context. The ex parte communications between the court and the Special Referee concerning the latter’s authority to consider plaintiffs right to the keys is not a ground for recusal. “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of ‘nonjuridical data’ ” (People v Moreno, 70 NY2d 403, 405 [1987]). Concur—Buckley, P.J., Tom, Marlow, Nardelli and Williams, JJ.

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Bluebook (online)

34 A.D.3d 207, 823 N.Y.S.2d 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabay-v-bender-nyappdiv-2006.

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