Kelley v. Zavalidroga

55 A.D.3d 1391, 864 N.Y.S.2d 819

Opinion

Appeal from an order of the Supreme Court, Oneida County (John W Grow, J.), entered August 21, 2006 in a declaratory judgment action. The order denied the motion of defendant for recusal.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: We conclude with respect to the order in appeal No. 1 that Supreme Court did not abuse its discretion in refusing to recuse itself based on its alleged bias resulting from the court’s former status as a partner in the law firm where defendant previously was employed as well as the court’s friendship with a partner in the law firm representing plaintiffs. Defendant’s “allegation of possible bias is too speculative to warrant the conclusion that the court abused its discretion in refusing to recuse itself here” (Matter of Rumsey v Niebel, 286 AD2d 564, 565 [2001]).

We conclude with respect to the order in appeal No. 2 that the court properly denied defendant’s motion to vacate the note of issue and certificate of readiness. The motion was not made within the requisite 20 days after service of the note of issue and certificate of readiness and, because defendant failed to show good cause for the untimely motion, “no such motion shall be allowed” (22 NYCRR 202.21 [e]; see Marks v Morrison, 275 AD2d 1027 [2000]). Finally, we conclude with respect to the order in appeal No. 3 that the court properly denied defendant’s motion to dismiss the amended complaint in this declaratory judgment action pursuant to CPLR 3211 (a) (2) and (7) (see generally Hallock v State of New York, 39 AD2d 172, 174 [1972], affd 32 NY2d 599). Present—Martoche, J.P., Lunn, Fahey and Pine, JJ.