DAULAT v. HELMS BROS INC (2008)

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated October 16, 2007, which denied that branch of his motion which was denominated as one for leave to renew or reargue and to vacate a prior order dated May 25, 2007, but which was, in actuality, one for leave to reargue his opposition to the defendant's prior motion for summary judgment on the counterclaim, which had been granted by an order dated May 25, 2007, and denied that branch of his motion which was for recusal.

ORDERED that the appeal from so much of the order as denied that branch of the plaintiff's motion which was denominated as one for leave to renew or reargue and to vacate the order dated May 25, 2007, but which was, in actuality, one for leave to reargue his opposition to the defendant's prior motion for summary judgment on the counterclaim is dismissed;  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

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

 That branch of the plaintiff's motion which was denominated as one for leave to renew or reargue his opposition to the defendant's prior motion for summary judgment on the counterclaim and to vacate a prior order dated May 25, 2007, granting the defendant's motion for summary judgment on the counterclaim was, as the Supreme Court found, actually one for leave to reargue his opposition to the defendant's prior motion, the denial of which is not appealable (see Trahan v. Galea, 48 A.D.3d 791, 792, 853 N.Y.S.2d 121;  Eight In One Pet Prods. v. Janco Press, Inc., 37 A.D.3d 402, 828 N.Y.S.2d 899).

 That branch of the plaintiff's motion which was for recusal failed to set forth proof which required the Supreme Court Justice hearing this motion to recuse himself.  “Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal” (People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200).   The plaintiff failed to set forth any proof of bias or prejudice to warrant the conclusion that the Justice's failure to recuse himself was an improvident exercise of discretion (see Modica v. Modica, 15 A.D.3d 635, 636, 791 N.Y.S.2d 134;  Matter of Firestone v. Siems, 272 A.D.2d 544, 545, 708 N.Y.S.2d 891;  Anjam v. Anjam, 191 A.D.2d 531, 532-533, 594 N.Y.S.2d 822).

The plaintiff's remaining contentions are without merit.