Opinion
34774/08.
July 14, 2010.
Plaintiff: Fred Way III, Esq., Brooklyn, NY, Jonathan Roller, Esq., Atty for Plaintiff, GLORIOUS TEMPLE, Brooklyn NY, John D'emic, pro se, Brooklyn NY, Rossi Crowley, LLP, Atty for RODRIGUEZ, Douglaston, NY, Ackerman Levine, LLP, Atty for GUERRAS and MOHANS, Great Neck, NY, Edward Kesselman, Esq., Atty for EVERBANK, NY, NY.
These actions involve complex litigation arising from competing claims of ownership to four parcels of real property located in Brooklyn, New York: 466 Lafayette Avenue (Block 1950, Lot 16, County of Kings); 470 Lafayette Avenue (Block 1950, Lot 18, County of Kings); 319 Nostrand Avenue (Block 1803, Lot 7, County of Kings); and, 65 Bond Street (Block 172, Lot 4, County of Kings). While pending before the Court are various motions and cross-motions for summary judgment, pro se defendant/third-party plaintiff VINCENT LONGOBARDI (LONGOBARDI) moves for a change of venue. LONGOBARDI, in his motion, claims that he cannot receive a fair trial in Kings County because third-party defendant JOHN D'EMIC (D'EMIC) is the brother of the Honorable Matthew D'Emic, a Court of Claims Judge who is a Kings County Acting Supreme Court Justice, and D'EMIC is also the Chief Deputy County Clerk for Kings County.
LONGOBARDI's claims that D'EMIC has "pervasive influence" and "this Court had so many scandals and been plagued with corruption over the last few years" are not only ridiculous and outrageous, but merely conclusory. The only evidence presented by LONGOBARDI in support of the instant motion are newspaper clippings about D'EMIC's legal problems. Nothing is presented that supports D'EMIC's alleged "pervasive influence" or that Supreme Court, Kings County "had so many scandals and been plagued with corruption over the last few years." Further, LONGOBARDI presents no evidence about the disposition of D'EMIC's legal issues.
In Behrins Behrins, P.C. v Chan XZ ( 40 AD3d 560 [2d Dept 2007], the Court at 560-561, could have been discussing the merits of the instant motion, when it instructed:
A motion to transfer venue pursuant to CPLR 510 (2) is addressed to the sound discretion of the trial court ( see Milazzo v Long Is. Light Co. 106 AD2d 495 [2d Dept 1984]), and its determination will not be disturbed absent an improvident exercise of discretion ( see generally Cannon v City of New York , 27 AD3d 607 [2d Dept 2006]; Rizzuto v Aurelia Osborne Fox Mem. Hosp. Socy., 265 AD2d 471 [2d Dept 1999]; Wantanabe Realty Co. v H.B. Singer, Inc., 170 AD2d 670 [2d Dept 1991]. The movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained ( see Field v Schultz, 288 AD2d 177 [2d Dept 2001]; De Bolt v Barbosa, 290 AD2d 821 [3d Dept 2001]; Albanese v West Nassau Mental Health Ctr., 208 AD2d 665 [2d Dept 1994]). Here, the appellant's motion papers consisted of nothing more than conclusory allegations, beliefs, suspicions, and feelings of possible bias against her and were inadequate grounds for the granting of the motion ( see Cohen v Bernstein , 9 AD3d 573 [3d Dept 2004]; Warm v State, 265 AD2d 546 [2d Dept 1999]; Jablonski v Trost, 245 AD2d 338 [2d Dept 1997]; Locker v 670 Apts Corp., 232 AD2d 176 [1d Dept 1996]; Krupka v County of Westchester, 160 AD2d 681 [2d Dept 1990]; Sadur v Doctors Hosp. of Staten Is., 146 AD2d 691 [2d Dept 1989]; cf. Amann v Caccese, 223 AD2d 663 [2d Dept 1996]; Milazzo v Long Is. Light Co., supra). Accordingly, the Supreme Court properly denied the appellant's motion to transfer venue ( see generally Mikul v Silverman, 25 AD3d 625 [2d Dept 2006]).
More recently, the Appellate Division, Second Department, in denying a change of venue held "the petitioner failed to meet his burden by offering only conclusory allegations, beliefs, suspicions, and feelings of possible bias or the appearance of impropriety." ( In re Michiel, 48 AD3d 687 [2d Dept 2008]). Therefore, the instant motion to change venue is denied.
However, I know D'EMIC's brother, Justice Matthew D'Emic, for approximately 30 years. Justice D'Emic is a jurist of the highest integrity. Justice D'Emic and I served together as members and officers of Community Board 10, Brooklyn and we share memberships in various organizations. Therefore, to avoid any potential appearance of impropriety in the instant case, I must recuse myself from this matter even though I know I would be fair and impartial as the Individual Assignment Judge for this action and in deciding motions in this action pending before the Court. However, in the exercise of discretion, good conscience, and to avoid any speculation as to the rationale for any decisions, I recuse myself from this case.
Judge Bellacosa, for a unanimous Court of Appeals ( People v Moreno, 70 NY2d 403, 405) instructed that "[a]bsent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal." The Court, in Schwartzberg v Kingsbridge Heights Care Center, Inc., 28 AD2d 465, 466 (2d Dept 2006), held that "[i]n the absence of a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and his or her decision is a matter of discretion and personal conscience ( see People v Moreno, 70 NY2d 403, 405)." In Poli v Gara, 117 AD2d 786, 788-789 (2d Dept 1986), the Court stated that "[t]he question of whether a Judge should recuse himself to avoid an appearance of impropriety is a matter left to the personal conscience of the court ( e.g., Matter of Johnson v. Hornblass, 93 AD2d 732 [1d Dept 1983]; Casterella v. Casterella, 65 AD2d 614 [2d Dept 1978])." ( See People v Fischer, 143 AD2d 1036 [2d Dept 1988]; People v Gallagher, 158 AD2d 469 [2d Dept 1990]; Warm v State, 265 AD2d 546 [2d Dept 1999]; In re Jimmy H., 274 AD2d 430 [2d Dept 2000]; People ex rel. Smulczeski, ex rel. Smulczeski v Smulczeski , 18 AD3d 785 [2d Dept 2005]; Tornheim v Tornheim , 28 AD3d 534 [2d Dept 2006]; Montesdeoca v Montesdeoca , 38 AD3d 666 [2d Dept 2007]; Kupersmith v Winged Foot Gold Club, Inc. , 38 AD3d 847 [2d Dept 2007]).
Conclusion
Accordingly, it is
ORDERED, that the motion of pro se defendant/third-party plaintiff VINCENT LONGOBARDI (LONGOBARDI) for a change of venue of the instant action is denied; and it is further
ORDERED, that I recuse myself forthwith from the instant action.
This constitutes the Decision and Order of the Court.