Gallagher v. Rubin

168 A.D.2d 372

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Tompkins, J.), entered June 8, 1990, which granted plaintiffs motion, pursuant to CPLR 325 (e), to remove this action from the Supreme Court to Surrogate’s Court, and denied defendant-appellant’s cross motion for recusal, unanimously affirmed, without costs.

This action was properly transferred to the Surrogate’s Court, in view of the pendency there of proceedings relating to the estate of Reba Rubin. The issues involved in this action and the pending proceeding are similar, and affect the administration of the estate before the Surrogate’s Court. As the Surrogate has been actively handling the administration of the estate since 1971 and was willing to accept jurisdiction of the Supreme Court action, it was proper to transfer the Supreme Court proceeding to the Surrogate’s Court. (CPLR 325 [e].)

While defendant claims that Justice Tompkins should have recused himself since the Surrogate had telephoned him and informed him that a transfer application would be presented to him, said communication was certainly not improper. There clearly is no evidence that the IAS court abused its discretion in not recusing itself. Concur—Kupferman, J. P., Ross, Rosenberger, Asch and Wallach, JJ.