Opinion
July 29, 1983
Carola Serbalik ( W. Donald Carola of counsel), for defendant.
David A. Wait, District Attorney ( Robert O. Wilhelm of counsel), for plaintiff.
By notice of motion, dated June 15, 1983, and supporting papers, the defendant moves for an order disqualifying Justice ANTHONY CAVOTTA, Justice of the Village Court of the Village of Stillwater, from hearing this prosecution, and transferring the matter to the acting Village Justice. The motion is grounded on an alleged bias possessed by Justice CAVOTTA toward the defendant.
The motion is opposed by the People.
County Court is a court of limited jurisdiction, and may only exercise powers specifically granted to it by the State Constitution or by statute. ( Matter of Gloversville Shopping Center, 63 Misc.2d 382.)
The court has found no constitutional or statutory authority which would empower it to disqualify a Justice of a local court, and transfer the action.
The only authority relied upon by the defendant for support, Matter of Johnson v Hornblass ( 93 A.D.2d 732), involved an application to the Appellate Division, First Department, for an order pursuant to CPLR article 78 prohibiting an Acting Justice of the Supreme Court of New York from sitting in a posttrial proceeding. An article 78 proceeding, however, is beyond the jurisdiction of this court. (See N Y Const, art VI, § 11; Judiciary Law, § 190; CPLR 7804, subd [b]; Matter of Sovocool v David, 7 A.D.2d 262; Matter of De Camilla v Connery, 23 A.D.2d 704.)
Accordingly, the defendant's motion is, in all respects, denied.