Opinion
2008-1546 W C.
Decided February 5, 2010.
Appeal, by permission, from an amended order of the Justice Court of the Town of Pelham, Westchester County (Anthony Pasquantonio, J.), dated August 7, 2008. The amended order recalled a prior order dated April 25, 2008 which, among other things, had granted the branch of tenants' motion seeking to have Judge Anthony Pasquantonio recuse himself and, upon such recall, among other things, denied the branch of tenants' motion seeking to have Judge Anthony Pasquantonio recuse himself.
ORDERED that the amended order is reversed without costs, the order dated April 25, 2008 is vacated except insofar as it granted the branch of tenants' motion seeking to have Judge Anthony Pasquantonio recuse himself, and the matter is remitted to the Justice Court for a determination de novo by a different judge of the remainder of tenants' motion.
PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ.
In this nonpayment proceeding, the Justice Court (Anthony Pasquantonio, J.), insofar as relevant to this appeal, by order dated February 8, 2008, granted the branch of a motion by landlord seeking to strike tenants' jury demand. By order dated April 25, 2008, Judge Pasquantonio granted the branch of tenants' motion for leave to reargue the prior motion, rescinded the prior order, denied the branch of landlord's prior motion seeking to strike the jury demand without prejudice to landlord moving for such relief at trial, and granted the branch of tenants' motion seeking his recusal. Thereafter, Judge Pasquantonio issued an amended order, dated August 7, 2008, recalling the April 25, 2008 order, denying tenants' recusal motion and, upon reargument, adhering to his February 8, 2008 order striking the jury demand.
While "recusal is a matter solely within the discretion and personal conscience of the court" ( Matter of Zugibe v Bartlett, 63 AD3d 1165, 1165-1166), where, as here, the court has decided to recuse itself on the grounds of an appearance of impartiality, it is inappropriate for the court to rescind its recusal order. Moreover, upon Judge Pasquantonio's recusal, he was unable to hear and determine the remainder of tenants' motion ( see Friends of Keuka Lake v DeMay, 206 AD2d 850) or to further act in this proceeding ( see People v Acevedo, 140 AD2d 846). Consequently, the amended order is reversed, the order dated April 25, 2008 is vacated except insofar as it granted the branch of tenants' motion seeking to have Judge Anthony Pasquantonio recuse himself, and the matter is remitted to the Justice Court for a determination de novo by a different judge of the remainder of tenants' motion.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.