Opinion
17390 Index No. 150114/22 Case No. 2022–03853
02-21-2023
In the Matter of the Application of A.C., Petitioner–Respondent, v. NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL, Respondent–Respondent, 342 E. 67 Realty LLC, Respondent–Appellant.
Kucker Marino Winiarsky & Bittens LLP, New York (Eric R. McAvey of counsel), for appellant. Newman Ferrara LLP, New York (Roger A. Sachar, Jr. of counsel), for respondent.
Kucker Marino Winiarsky & Bittens LLP, New York (Eric R. McAvey of counsel), for appellant.
Newman Ferrara LLP, New York (Roger A. Sachar, Jr. of counsel), for respondent.
Kapnick, J.P., Oing, Kennedy, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Laurence Love, J.), entered on or about March 10, 2022, which, to the extent appealed from, denied in part respondent's cross motion pursuant to CPLR 510(2) for a change of venue from New York County to a county outside the territorial limits of the First Judicial Department and transferred venue to Bronx County, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the cross motion granted in its entirety, and venue transferred to Kings County.
The court's transfer of this article 78 proceeding to Bronx County, where petitioner formerly presided as a Judge of the Family Court, was an improvident exercise of discretion because permitting petitioner to adjudicate the matter in that county would create a "possible appearance of impropriety" ( Rothwax v. Spicehandler, 161 A.D.2d 184, 185, 554 N.Y.S.2d 882 [1st Dept. 1990] ; see Lisa v. Parikh, 131 A.D.3d 1135, 1136, 16 N.Y.S.3d 752 [2d Dept. 2015] ). For the same reason, the proceeding should not be adjudicated in New York County, where petitioner currently serves as an Acting Justice of the Supreme Court. To ensure the impartiality of the proceedings, and under the totality of the circumstances, the venue should be transferred to Kings County, as requested by respondent. Having the matter adjudicated in Kings County would not inconvenience the parties, given its proximity to New York County and the lack of witnesses anticipated in this article 78 proceeding.