Opinion
FSTCV085006978S
01-24-2020
The Bank of New York v. Andrew Consiglio et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Genuario, Robert L., J.
MEMORANDUM OF DECISION RE THE DEFENDANT HEATHER LINDSAY’S MOTION FOR RECUSAL AND CHANGE OF VENUE TO NEW HAVEN (DOCKET NUMBER 433)
GENUARIO, J.
1. Recent History
This foreclosure action was instituted in 2008. It is unnecessary for the purposes of this decision to recite the entire litigation history, but reference to certain aspects of the more recent history is appropriate to place the subject motion in context. On January 6, 2020, the Court granted the plaintiff’s motion to reset law days after the filing of the most recent bankruptcy petition of the two individual defendants, Heather Lindsay (Lindsay) and Andrew Consiglio (Consiglio) (collectively, the defendants). The order dismissing Lindsay’s and Consiglio’s bankruptcy petition noted that the defendants had been granted an extension of time to file certain required documents and that they failed to file those documents with the Bankruptcy Court, which resulted in the dismissal of that bankruptcy action. In the Superior Court’s order granting the motion to reset law days, the law day for the owner of the equity of redemption was set for February 4, 2020. On January 6, 2020 the defendants filed a motion to dismiss for a lack of subject matter jurisdiction (see docket #420). This motion to dismiss is not the first motion to dismiss filed by the defendants and indeed Judge Tierney in a thorough and well reasoned 22-page decision filed on January 6, 2017 noted that as of that date, Consiglio had filed six motions to dismiss. Lindsay did not become a party to this action until May 21, 2018, when Consiglio’s motion to cite her in was granted. Several additional motions to dismiss have been filed since that decision.
The motion to dismiss purports to be filed by both defendants, but the court observes that while Lindsay is self represented, Consiglio is represented by counsel and the motion is not signed by his counsel.
The currently pending motion to dismiss (docket number 420) was scheduled for a hearing before the undersigned on January 21, 2020. On the morning of that scheduled hearing Lindsay filed this motion for disqualification of judicial authority (the motion to recuse). In this motion, Lindsay moves "to disqualify all of the Honorable Judges of the Stamford court from rendering a decision on the issues before the court. Defendant also asks for a change of venue to New Haven." On January 21, 2020 the plaintiff filed an objection to Lindsay’s pending motion to dismiss. Both counsel for Consiglio and Lindsay requested a continuance of the motion to dismiss because of the January 21 filing of the plaintiff’s objection, arguing that the late filing of the objection did not give them adequate time to prepare to respond. The defendants also requested that the Court open judgment and extend the law days until such time as the Court had an opportunity to hear the motion to dismiss.
The Court declined to open the judgment and reset the law days at that hearing but announced in court that it would continue the hearing on the motion to dismiss and the objection thereto until January 27, 2020 which would give the defendants an opportunity to review and be prepared to address the issues raised in the plaintiff’s objection to their motion to dismiss. The Court also announced that it would hear Lindsay’s motion to recuse at that time and render a decision prior to January 27, 2020. After argument on the motion to recuse the court reserved decision.
II. Standards for Recusal
Connecticut Practice Book § 1-22(a) states that:
A judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to rule 2.11 of the Code of Judicial Conduct ...
Rule 2.11(2) of the Code of Judicial Conduct states in pertinent part:
A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned including but not limited to, the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
Rules 2.3 and 2.5 of the Code of the Judicial Conduct set forth certain standards concerning a judge’s conduct which requires a judge to perform his or her duties "without bias or prejudice" (Rule 2.3) and "competently and diligently" (Rule 2.5).
The Connecticut Appellate Court has stated:
The standard for determining whether a judge should recuse himself or herself pursuant to [Rule 2.11] of the Code of the Judicial Conduct is well established. The standard to be employed is an objective one, not the judge’s subjective view as to whether he or she can be fair and impartial in hearing the case ... Any conduct that would leave a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might be reasonably questioned is basis for the judge’s disqualification.St. Germain v. Labrie, 108 Conn.App. 587, 595 (2008). In St. Germain the court repeated a long standing rule that "adverse rulings by the judge did not amount to the evidence of bias sufficient to support a claim of judicial disqualification." Id. at 596, quoting State v. Bunker, 89 Conn.App. 605, 613 (2005), appeal dismissed, 280 Conn. 512 (2006).
The case of Tracey v. Tracey, 97 Conn.App. 278 (2006), provides some clarity with regard to the application of the standard. While acknowledging that each claim of judicial impropriety must be evaluated on its own facts, the Tracey court went on to discuss three "precepts" set forth in the case law addressing the appearance of impropriety.
The first precept concerns the so-called extrajudicial source rule, which hold that the bias or prejudice sufficient to result in disqualification "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." Tracey at 283-84, quoting United States v. Grinnell Corps., 384 U.S. 563, 583 (1966). The second precept pertains to the judge’s involvement in multiple proceedings with the same party. "Courts have routinely held that the prior appearance of a party before a trial judge does not reflect upon the judge’s impartiality in a subsequent action involving that party." State v. Webb, 238 Conn. 339, 461 (1966). The third precept is that speculation is not sufficient to establish the appearance of an impropriety.
III. The Movant’s Grounds
In her written motion the movant cites five motions which she has filed in this case and which she claims demonstrates the Court’s bias against her in the handling or mishandling of these motions. The Court will discuss each of these motions and decisions rendered with regard to them. In motion #388 Lindsay requested the Stamford Superior Court Clerk’s Office "disclose critical information, which appears to be gravely prejudicing her case and her constitutional rights to due process in this matter before the court." She recites a conversation she had with the clerk’s office indicating that when she asked why the clerk’s office was not respecting "the Appellate stay." She recites that the clerk’s office informed her that clerks do not make any legal conclusions and they bring all Appellate stay matters to the attention of the judge once they have knowledge an appeal was filed. Putting aside that the response of the clerk’s office to Lindsay’s inquiry seems to be an appropriate response, the undersigned denied the motion because there did not seem to be any necessary or appropriate relief to be ordered. Moreover, the Court also observes that Lindsay apparently ignores the fact (or has forgotten) that on March 6, 2018 the Court (Tierney, J.) in a seven-page Memorandum of Decision granted the plaintiff’s Motion to Terminate the Automatic Stay of Execution on Appeal and Terminate any Future Automatic Stays of Execution on Appeal. See docket numbers 274 and 274.03. It does not appear that Appellate review of that decision was sought. The Court also observes that Lindsay’s most recent appeal was rejected by the Appellate Court. See docket number 401.25. The denial of that motion does not reflect bias against Lindsay or Consiglio.
Docket number 389 is not a motion that is properly addressed to relief this Court can grant acting in its judicial capacity on this case. Docket number 389 complains about a particular employee of the judicial branch. Without commenting one way or another about the substance of Lindsay’s complaints about that employee (who of course is not a party to this case and has no opportunity to be heard in this case), there is no relationship between any bias that an individual employee might have and a motion to disqualify all of the judges of the Stamford Superior Court.
In motion number 390 Lindsay seeks an order vacating all orders of the court back to a certain date, because of the Appellate Stay. Lindsay again ignores the fact that the appellate stay had been terminated by the court and accordingly any pending appeals of Consiglio did not result in an automatic stay. There are currently no pending appeals filed by Lindsay. In motion 390 Lindsay refers to the court’s denial of docket number 353, another motion to dismiss. In denying that motion to dismiss, the court wrote "denied notwithstanding the fact that the court continued this matter at defense counsel’s request and the court gave specific instructions as to the issues it would like defense counsel to address, no one appeared at the hearing for the defense. The court finds no basis for the defendant’s motion particularly considering these very same issues were adjudicated after an evidentiary hearing by Judge Tierney. The motion is denied." The decision does not reflect bias.
Docket number 391 is a list of exhibits referencing an attorney who previously represented Consiglio that was filed on November 5, 2019 but the subject attorney has not been involved in this case, for almost two years. See docket number 273. Once again, the court does not believe that Lindsay’s complaints about a prior attorney of Consiglio can in any way be probative of bias of any judge let alone all of the judges of the Stamford Superior Court.
With regard to motion #395 (and associated motion #394) the Court believes that it was particularly sensitive to Lindsay’s rights in dealing with this motion. Lindsay had filed a motion to open and vacate the judgment at a time when the law day had been set for November 5, 2019. The hearing on that motion had been scheduled for November 4, 2019. Consiglio’s attorney (Attorney Scalzi) had also filed a motion to dismiss scheduled for that same day. Attorney Scalzi quite reasonably requested a continuance because of the death of an immediate family member. The court granted Attorney Scalzi’s motion for continuance as to the motion filed by him, but proceeded to hear Lindsay’s motion to open and vacate the judgment. The Court explained in its decision (docket number 394.0) that it could not continue Lindsay’s motion to open and vacate the judgment "because to continue that hearing would have been severely prejudicial to the defendant Lindsay. Judgment of strict foreclosure had previously entered with the law day of November 5, 2019. The hearing on that motion was scheduled for 2:00pm on November 4, 2019. If the court continued the motion and the law days passed then any relief that the defendant Lindsay might have otherwise been entitled to would not have been available to her by virtue of the vesting of title after passing of the law days. See C.G.S. § 49-15(a)(1)."
In other words, if the court had granted the continuance as to Lindsay’s motion to open and vacate as Attorney Scalzi had requested, though it was not his or his client’s motion, the court would have prejudiced Lindsay’s rights to be heard on her motion to open and vacate as the law day would have passed prior to the time that the hearing was held. Instead the court continued Attorney Scalzi’s motion to dismiss but gave Lindsay an opportunity to be heard on her motion to open and vacate. The court explained this reasoning both in open court to Lindsay and in its order. The court denied Lindsay’s motion to open and vacate judgment.
During oral argument on the subject motion Lindsay referenced other cases in which she has been involved pending in this courthouse. However, she did not provide any substantive reason, and the court knows of no reason, why those other cases which are unrelated to this subject action would cause a bias or cause a reasonable person to believe there is a bias against either Lindsay or Consiglio. As previously stated, "[c]ourts have routinely held that the prior appearance of a party before a trial judge does not reflect upon a judge’s impartiality" State v. Webb, supra . There is simply no reason proffered by Lindsay that would lead to the conclusion that any of the judges in the Stamford courthouse, let alone all of the judges of the Stamford courthouse, have a bias against either of the defendants. Simply put, Lindsay’s disagreement with or dissatisfaction with prior decisions of judges is not grounds for recusal of those judges or any other judges.
IV. Conclusions
The history recited in the above section is merely the history of this case over the course of the last several months. This foreclosure action was started in 2008; the court’s review of the records indicates that the Stamford judges have given the defendants ample opportunity to be heard on their motions and have not exhibited any bias or prejudice against either of the defendants whatsoever. The movant’s complaints against the judges of the Stamford courthouse are misplaced. She simply is complaining about adverse rulings by different judges. However, "adverse rulings by the judge did not amount to evidence of bias sufficient to support a claim of judicial disqualification." St. Germain, supra . Her claims violate all three precepts set forth in Tracey. Her complaints do not stem from an extrajudicial source. Her complaint that she is involved in multiple proceedings in this courthouse do not reflect upon a judge’s impartiality. Her complaints and conclusions as to the underlying motivations of the judges issuing decisions are simply speculation. There is no basis for the recusal of the undersigned or any of the judges of the Stamford courthouse based upon the claims, that Lindsay has made.
For all these reasons the Motion to Recuse and to Transfer the Case to New Haven is denied.