In re the Estate of Wiggins

218 A.D.2d 904, 630 N.Y.S.2d 155, 1995 N.Y. App. Div. LEXIS 8646

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 1995
• Status: Published

Opinion

—Casey, J.

Appeals (1) from an order of the Surrogate’s Court of Fulton County (Mazzone, S.), entered June 17, 1994, which denied petitioner’s application for the recusal of respondent, and (2) from an order of said court, entered August 11, 1994, which denied petitioner’s motion for reconsideration.

Petitioner’s motion for reconsideration of the prior application for recusal was based upon additional facts which petitioner could not have discovered until after the initial application for recusal. Accordingly, the motion for reconsideration was a motion for renewal and the order denying that motion is appealable (see, Seifts v Markle, 211 AD2d 848).

Based upon the parties’ insistence that the recent Court of Appeals decision in the companion case of Matter of Stortecky v Mazzone (85 NY2d 518) does not affect this appeal, the only issue to be decided is whether the Surrogate abused his discretion in refusing to recuse himself. Considering the record as a whole, including the statements made by the Surrogate in support of the motion for leave to appeal to the Court of Appeals in Matter of Stortecky v Mazzone (supra), we are of the view that the Surrogate’s impartiality has been called into question (see, 22 NYCRR 100.3 [c] [1]) and recusal is appropriate to avoid even the appearance of impropriety (see, Matter of Murphy, 82 NY2d 491, 495).

Cardona, P. J., Mikoll, Mercure and Peters, JJ., concur. Ordered that the order entered August 11,1994 is reversed, on the law and the facts, with costs, motion to renew granted and, upon renewal, motion to recuse granted. Ordered that the appeal from order entered June 17, 1994 is dismissed, as academic.