Warm v. State

Appellate Division of the Supreme Court of New York

Warm v. State

265 A.D.2d 546, 697 N.Y.S.2d 148, 1999 N.Y. App. Div. LEXIS 10762

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

DecidedOctober 25, 1999

StatusPublished

Cited by10 cases

This text of 265 A.D.2d 546 (Warm v. State) 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

Warm v. State, 265 A.D.2d 546, 697 N.Y.S.2d 148, 1999 N.Y. App. Div. LEXIS 10762 (N.Y. Ct. App. 1999).

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Opinion

—In an action, inter alia, to recover damages for trespass and nuisance, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (Braatz, J.), dated March 5, 1998, as denied those branches of their motion which were to change the venue of the action from Putnam County to [547]*547Westchester County and for the Supreme Court Justice to recuse himself, and granted that branch of the cross motion of the defendant Town of Southeast which was to impose a sanction upon the plaintiffs’ attorney.

Ordered that the appeal by the plaintiffs from so much of the order as granted that branch of the cross motion which was to impose a sanction on their attorney is dismissed, as the plaintiffs are not aggrieved by that part of the order (see, CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from and reviewed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The defendant Harold Lepler has a long-standing personal and business relationship with a Justice of the Supreme Court, Putnam County, who was originally assigned to the case, but recused himself and was succeeded by Justice Braatz. The plaintiffs failed to demonstrate a strong possibility that they could not obtain an impartial trial in Putnam County based on their claim that an appearance of impropriety may exist because of the personal and business relationship between Justice Hickman and the defendant Harold Lepler. Therefore, that branch of the plaintiffs’ motion which was to change the venue of the action was properly denied (see, Jablonski v Trost, 245 AD2d 338; Sadur v Doctors’ Hosp., 146 AD2d 691; Milazzo v Long Is. Light. Co., 106 AD2d 495).

Absent a legal disqualification pursuant to Judiciary Law § 14, a Trial Justice is the sole arbiter of recusal (see, People v Moreno, 70 NY2d 403; Matter of Johnson v Hornblass, 93 AD2d 732). Here, the plaintiffs failed to demonstrate that Justice Braatz improvidently exercised his discretion in failing to recuse himself from the case. Mangano, P. J., O’Brien, Ritter and Schmidt, JJ., concur.

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—In an action, inter alia, to recover damages for trespass and nuisance, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (Braatz, J.), dated March 5, 1998, as denied those branches of their motion which were to change the venue of the action from Putnam County to [547]*547Westchester County and for the Supreme Court Justice to recuse himself, and granted that branch of the cross motion of the defendant Town of Southeast which was to impose a sanction upon the plaintiffs’ attorney.

Ordered that the appeal by the plaintiffs from so much of the order as granted that branch of the cross motion which was to impose a sanction on their attorney is dismissed, as the plaintiffs are not aggrieved by that part of the order (see, CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from and reviewed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The defendant Harold Lepler has a long-standing personal and business relationship with a Justice of the Supreme Court, Putnam County, who was originally assigned to the case, but recused himself and was succeeded by Justice Braatz. The plaintiffs failed to demonstrate a strong possibility that they could not obtain an impartial trial in Putnam County based on their claim that an appearance of impropriety may exist because of the personal and business relationship between Justice Hickman and the defendant Harold Lepler. Therefore, that branch of the plaintiffs’ motion which was to change the venue of the action was properly denied (see, Jablonski v Trost, 245 AD2d 338; Sadur v Doctors’ Hosp., 146 AD2d 691; Milazzo v Long Is. Light. Co., 106 AD2d 495).

Absent a legal disqualification pursuant to Judiciary Law § 14, a Trial Justice is the sole arbiter of recusal (see, People v Moreno, 70 NY2d 403; Matter of Johnson v Hornblass, 93 AD2d 732). Here, the plaintiffs failed to demonstrate that Justice Braatz improvidently exercised his discretion in failing to recuse himself from the case. Mangano, P. J., O’Brien, Ritter and Schmidt, JJ., concur.

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265 A.D.2d 546, 697 N.Y.S.2d 148, 1999 N.Y. App. Div. LEXIS 10762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warm-v-state-nyappdiv-1999.

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