Opinion
WTHCV166001095S
05-02-2017
The Bank of New York Mellon fka the Bank of New York as Trustee for Certificate Holders of CWALT, Inc., Alternative Loan Trust 2007-0HI, Mortgage Pass Through Certificates, Series 2007-0HI v. Keyin Worth et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE SECOND AND THIRD MOTIONS TO RECUSE
Barbara Brazzel-Massaro, J.
INTRODUCTION
On April 13, 2017 the defendant, Keyin Worth filed a motion for recusal and disqualification of the Honorable Anthony Avallone. The matter was scheduled before this court for a hearing. On April 21, 2017 the court denied the motion and set forth its reasons on the record for the parties as the decision for the first motion. By way of motion dated April 26, 2016 the defendant has filed a Second Verified Motion for Recusal and Disqualification of Judge. The matter was referred to this court and the court was in the process of reviewing this motion as a request to reconsider its prior ruling denying the motion for recusal when the defendant filed a Third Verified Motion for Recusal and Disqualification of Judge Avallone dated May 2, 2017. The court has considered each of the two motions filed by the defendant for reconsideration.
DISCUSSION
" [T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple." (Citations omitted; internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692-93, 778 A.2d 981 (2001). " The granting of a motion for reconsideration . . . is within the sound discretion of the court." (Internal quotation marks omitted.) Mangiante v. Niemiec, 98 Conn.App. 567, 575-77, 910 A.2d 235 (2006). " A reconsideration implies reexamination and possibly a different decision by the [court] which initially decided it." (Internal quotation marks omitted.) Id., 577. " If a court is not convinced that its' initial ruling is correct then in the interests of justice it should reconsider the order provided it retains jurisdiction over the subject matter and the parties." (Internal quotation marks omitted) Tiber Holding Corp. v. Greenberg, 36 Conn.App. 670, 671 n.1 (1995) Our Supreme Court has held that, " A judge should hesitate to change his own ruling in a case . . ." Lewis v. Gaming Policy Board, 224 Conn. 693, 697, 620 A.2d 780 (1993).
Therefore, the standards to be considered by the court in deciding this motion can be summarized as follows: (1) the court's overlooking a decision or some controlling principle of law; (2) the court's misapprehension of facts; (3) inconsistencies in the court's written decision; or (4) the court's failure to address claims of law. Tauck v. Tauck, 2007 WL 901855, 1 (Conn.Super.Ct. March 12, 2007).
The defendant contends in each of the additional filings to disqualify Judge Avallone that his conduct amounts to a violation of the Canons of Judicial Conduct. In each of the additional actions the defendant makes almost identical allegations in support of her motion that the court should reconsider and reverse its decision denying the motion. The Second Motion is almost identical to the original or first motion filed by the defendant. It simply adds portions of the Canon, Rules 2.2, 2.3, 2.5, 2.6, 2.7, 2.8 and 2.11, and summarizes these as the action of Judge Avallone which support her claim that he should be disqualified because he " unfairly and impartially" makes " untrue and inaccurate statements during hearings." However, the defendant in her summary of actions provides no evidence or testimony that would support this statement. It has no substantive difference than the allegations already made and the argument provided to the court in the First Motion. Other than the addition of Canon 2 the only other distinctions made in the Second Motion are that the defendant removed the allegations of other actions against Judge Avallone only after the court upon inquiry learned this allegation was without support and in fact inaccurate. The second distinction is the claim in paragraph vi that the defendant attempts to mischaracterize Attorney Picard's part in an attempted settlement. Unfortunately, the defendant as a self-represented party did not understand that she was being given the same opportunity as every litigant who has counsel to discuss the possibility of reaching a resolution of the matter before a hearing. There is nothing inherently wrong with settlement discussions and obviously the defendant chose not to accept any offers, as is her choice. However, this is not a basis for disqualification. Additionally, the defendant includes case law for her position such as Ajadi v. Commissioner of Correction, 280 Conn. 514 (2006), which does not support her position. In Ajadi, the judge had represented the petitioner in the habeas procedure which was before him and thus the court determined it was incumbent upon the judge to recuse himself. No such connection is present here.
This court referred to Canon 2 of the Judicial Code of Conduct in the decision regarding the first motion to recuse or disqualify and that decision outlined the lack of evidence or testimony to apply any of the areas of conduct for disqualification. These motions provide no support pursuant to the law to change any of the findings.
The third motion contains the same allegations raised in the first and second motions with the exception of a claim that a Writ of Mandamus was denied as well as the claim that she is targeted as an Asian-American by the court. This is a serious allegation with absolutely no evidence in the pleadings or in the transcript that would even hint at such treatment. Although there is a liberal interpretation of the pleadings in court actions it is improper to include in a complaint allegations that are purely speculative or an attempt to delay the proceedings. The defendant has not satisfied the elements to reconsider that is there are no new principals of law, no misapprenhension of facts, no inconsistences in the written decisions, no failure to address claims of law. Therefore, the motions fail to provide a legal or factual basis for this court to reconsider or vacate any prior rulings that have found no basis under the rules as set forth in the first decision of this court to disqualify the Honorable Judge Anthony Avallone.
Therefore, the Second and Third Motions to Recuse and Disqualify the Honorable Anthony Avallone are considered as Motions to Reconsider but a review indicates they are the same in substance except for the limited changes noted above which provide no basis to reconsider and thus are denied.