Summary
upholding Defendant Becker's denial of Plaintiffs' motion for recusal and his decision to sanction Plaintiff Bracci
Summary of this case from Bracci v. BeckerOpinion
2012-11-21
In the Matter of Ryan ADAMS, Petitioner, v. Alecia BRACCI, Appellant. (And Nine Other Related Proceedings.)
Neroni Law Office, Delhi (Tatiana Neroni of counsel), for petitioner.
Before: MERCURE, J.P., LAHTINEN, MALONE JR., and EGAN JR., JJ.
, J.
Appeals (1) from an order of the Family Court of Delaware County (Becker, J.), entered April 29, 2011, which, in 10 proceedings pursuant to Family Ct. Act article 6, among other things, denied respondent's motion to vacate prior orders of custody, and (2) from an order of said court, entered July 1, 2011, which, sua sponte, imposed sanctions upon respondent and her attorney.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a daughter (born in 2004). The daughter has been the subject of a number of custody proceedings presided over by Delaware County Family Court Judge Carl F. Becker. In March 2011, the mother moved to vacate any and all orders of Judge Becker, based on her allegation that he was not qualified to serve as a judicial officer due to the lack of a certificate of election on file with the Delaware County Clerk's office. The motion also sought removal of the appointed attorney for the child on the grounds that he was not appointed by a duly authorized judicial officer and that he failed to provide effective assistance of counsel to the child. The father answered the motion and requested that Family Court sanction the mother and her attorney for filing a frivolous motion.
Family Court thereafter denied the mother's motion in its entirety and ordered both the mother and her attorney to show cause why sanctions and costs should not be imposed on them. After considering the affirmation of the mother's attorney in opposition to the imposition of sanctions, Family Court determined that the conduct of the mother and her attorney was frivolous and, as relevant here, conditionally ordered the mother to pay sanctions in the amount of $250.
The mother now appeals from both the order denying her motion to vacate and the order imposing sanctions.
Family Court stayed the payment of the sanctions by the mother for a period of six months and provided that such sanctions would be vacated if no further frivolous motions were filed by her within that time. Although Family Court also imposed sanctions upon the mother's attorney, they are not the subject of this appeal.
The mother's argument that Family Court erred in denying her motion to vacate is unpersuasive. To be sure, a prior order may be vacated based upon, among other things, lack of jurisdiction to render the order ( seeCPLR 5015[a][4] ). Here, however, the mother's motion to vacate all prior custody orders issued by Judge Becker was premised on the lack of a certificate of his election being on file ( seeCounty Law § 400[5] ). Even if there was an irregularity in Judge Becker's election filings, his subsequent orders and judgments are nonetheless valid and are immune from any collateral attack ( seePublic Officers Law § 15; Matter of Gilmartin v. Tax Appeals Trib., 31 A.D.3d 1008, 1010, 818 N.Y.S.2d 682 [2006] ), and his appointment of the attorney for the child is similarly protected ( see People v. Costa, 186 A.D.2d 299, 299, 587 N.Y.S.2d 452 [1992],lv. denied81 N.Y.2d 761, 594 N.Y.S.2d 723, 610 N.E.2d 396 [1992] ). Accordingly, Family Court's denial of the mother's motion on this ground was a sound exercise of its discretion ( see Matter of Monaco v. Armer, 93 A.D.3d 1089, 1090, 941 N.Y.S.2d 316 [2012],lv. denied19 N.Y.3d 807, 2012 WL 2401571 [2012] ).
Additionally, inasmuch as the mother's moving papers did not set forth any specific factual allegations to support her argument that the attorney for the child failed to provide the child with the effective assistance of counsel, such argument must be rejected.
Contrary to the mother's contention, Judge Becker was not required to recuse himself from determining the motion to vacate. “Absent a legal disqualification under Judiciary Law § 14, which is not at issue here, a ... judge is the sole arbiter of recusal and his or her decision, which lies within the personal conscience of the court, will not be disturbed absent an abuse of discretion” ( Gonzalez v. L'Oreal USA, Inc., 92 A.D.3d 1158, 1159, 940 N.Y.S.2d 328 [2012],lv. dismissed19 N.Y.3d 874, 947 N.Y.S.2d 48, 969 N.E.2d 1163 [2012] [internal quotation marks and citations omitted]; see Matter of Albany County Dept. of Social Servs. v. Rossi, 62 A.D.3d 1049, 1050, 880 N.Y.S.2d 199 [2009] ). We discern no basis in the record to conclude that such an abuse of discretion occurred here ( see Maki v. Bassett Healthcare, 85 A.D.3d 1366, 1370, 924 N.Y.S.2d 688 [2011],appeal dismissed17 N.Y.3d 855, 930 N.Y.S.2d 550, 954 N.E.2d 1176 [2011],lv. dismissed and denied18 N.Y.3d 870, 938 N.Y.S.2d 852, 962 N.E.2d 276 [2012] ). The mother's argument that Judge Becker is biased against her and her attorney is wholly unsubstantiated ( see People v. Shultis, 61 A.D.3d 1116, 1117, 876 N.Y.S.2d 740 [2009],lv. denied12 N.Y.3d 929, 884 N.Y.S.2d 710, 912 N.E.2d 1091 [2009] ). Additionally, inasmuch as the denial of the mother's motion to vacate was based on Public Officers Law § 15, Judge Becker's statements regarding his election were irrelevant and did not make him an unsworn witness in this proceeding ( see Oakes v. Muka, 56 A.D.3d 1057, 1059, 868 N.Y.S.2d 796 [2008] ).
While the mother's appeal from the July 1, 2011 order has arguably been rendered moot
( see Matter of Freeman v. State Univ. of N.Y. at Potsdam, 83 A.D.3d 1243, 1243, 920 N.Y.S.2d 737 [2011] ), it lacks merit in any event. Contrary to the mother's contentions, Family Court's imposition of sanctions satisfied the procedural requirements of 22 NYCRR 130–1.2 and properly identified her sanctionable conduct as “fil[ing] a motion to disqualify the court on grounds that [were] completely without basis in law and [could not] be supported by a reasonable argument for an extension, modification or reversal of existing law” ( see22 NYCRR 130–1.1). In addition, Family Court previously noted the “unremitting and vexacious course of litigation and conduct against [the father].” Under these circumstances, we conclude that Family Court's decision to conditionally sanction the mother was a proper exercise of its discretion ( see Yankee Lake Preserv. Assn., Inc. v. Stein, 68 A.D.3d 1603, 1605, 893 N.Y.S.2d 300 [2009],lv. denied15 N.Y.3d 706, 2010 WL 3431099 [2010] ).
It has come to our attention that, pursuant to an order dated September 20, 2012, the sanctions previously imposed on the mother were vacated because no further frivolous motions were filed within the relevant six-month period.
The mother's remaining contentions have been examined and are either academic or without merit.
ORDERED that the orders are affirmed, without costs.