TORNHEIM v. TORNHEIM (2006)

In a matrimonial action in which the parties were divorced by judgment dated November 20, 2001, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Yancey, J.), dated May 20, 2004, which, inter alia, appointed a Law Guardian for the parties' child, (2) an order of the same court dated July 12, 2004, which denied his motion for recusal, and (3) an order of the same court dated July 29, 2004, which, in effect, appointed a Judicial Hearing Officer to hear and report on the defendant's motion for permission to relocate with the parties' child to the State of Florida.

ORDERED that the appeal from the order dated July 29, 2004, is dismissed;  and it is further,

ORDERED that on the court's own motion, the notice of appeal from the order dated May 20, 2004, is treated as an application for leave to appeal and leave to appeal is granted, and it is further,

ORDERED that the orders dated May 20, 2004, and July 12, 2004, are affirmed;  and it is further;

ORDERED that one bill of costs is awarded to the defendant.

 The appeal from the order dated July 29, 2004, must be dismissed as the order is not appealable as of right (see CPLR 5701[a][2][v];  Board of Managers of Oaks At La Tourette II v. Management Consultants Intl., 170 A.D.2d 636, 636-637, 567 N.Y.S.2d 62) and was superseded by an order of the same court dated January 21, 2005, granting a motion to confirm the referee's report recommending the granting of the defendant's motion for permission to relocate with the parties' child to the State of Florida (see Tornheim v. Tornheim, 28 A.D.3d 535, 816 N.Y.S.2d 88, decided herewith).

 Absent a legal disqualification under Judiciary Law § 14, a court is the sole arbiter of its recusal (see People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200).   Here, on his motion for recusal, the plaintiff failed to set forth any proof of the Supreme Court's bias or prejudice.   Under these circumstances, the Supreme Court providently exercised its discretion in denying that motion (see People ex rel. Smulczeski v. Smulczeski, 18 A.D.3d 785, 786, 795 N.Y.S.2d 695;  Modica v. Modica, 15 A.D.3d 635, 636, 791 N.Y.S.2d 134;  Colella v. Colella, 11 A.D.3d 576, 782 N.Y.S.2d 669).

The plaintiff's remaining contentions are without merit.