Opinion
1:04-CV-867, 1:04-CV-1505.
August 24, 2010
HILARY ADLER, ESQ., OFFICE OF HILARY ADLER, Attorneys for Plaintiff, Gardiner, New York.
NELSON E. ROTH, ESQ., VALERIE L. DORN, ESQ., CORNELL UNIVERSITY OFFICE OF UNIVERSITY COUNSEL, Attorneys for Defendants Cornell University, New York State College of Human Ecology at Cornell University, Michael A. Nunno, Gwen Ames, Denise J. Clarke, and Virginia Sierra, Ithaca, New York.
DOUGLAS J. GOGLIA, ESQ., NELSON SHEINGOLD, ESQ., Assistant Attorneys General, HON. ANDREW M. CUOMO, Attorney General of the State of New York, Attorney for Defendants Office of Children and Family Services of the State of New York, The Department of Family Assistance of the State of New York, and Peter D. Miraglia, Albany, New York.
DAVID H. WALSH, IV, ESQ., PETRONE PETRONE, P.C., Attorneys for Defendants Hillside Children's Center, Dennis Richardson, and Douglas Bidleman, Utica, NY.
WILLIAM H. PEASE, ESQ., HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, Attorney for Amicus Curiae The United States of America, Syracuse, New York.
DECISION and ORDER
On July 5, 2010, plaintiffs filed motions to recuse in the above-captioned related cases pursuant to 28 U.S.C. § 455(a). The State defendants and the Cornell defendants opposed. The motion was taken on submission without oral argument.
A United States judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The party seeking recusal has the burden of demonstrating "an `objectively reasonable basis for questioning a judge's impartiality.'" Jemzura v. Pub. Serv. Comm'n, 961 F. Supp. 406, 410 (N.D.N.Y. 1997) (McAvoy, C.J.) (quoting In re I.B.M. Corp., 45 F.3d 641, 644 (2d Cir. 1995)). Recusal is appropriate only where "`a reasonable person, knowing all the facts, [would] conclude that the trial judge's impartiality could reasonably be questioned.'" Id. (quoting U.S. v. Lovaglia, 954 F.2d 811 (2d Cir. 1992)). Recusal cannot be based upon rulings of the court, but rather, upon extrajudicial matters. Id. at 411. Moreover, there is an obligation to refrain from recusal where grounds for doing so do not exist. Local 338, RWDSU v. Trade Fair Supermarkets, 455 F. Supp. 2d 143, 145 (E.D.N.Y. 2006).
Upon careful consideration of the assertions and arguments of the parties, plaintiffs have failed to meet their burden of establishing that there is a basis for recusal.
Accordingly, it is
ORDERED that plaintiffs' motion for recusal is DENIED.
IT IS SO ORDERED.