IN RE: CENTER FOR JUDICIAL ACCOUNTABILITY (2024)

MEMORANDUM AND ORDER

Appeals (1) from a judgment of the Supreme Court (David M. Gandin, J.), entered November 23, 2022 in Albany County which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, granted respondents’ cross-motion to dismiss the petition/complaint, and (2) from an order of said court, entered February 16, 2023 in Albany County, which denied petitioners’ motion for reargument.

Petitioners Center for Judicial Accountability, Inc. and its director, Elena Ruth Sassower, commenced this combined CPLR article 78 proceeding and declaratory judgment action against respondents, various state agencies and officials, seeking, among other things, to compel the performance of certain official acts and to declare unconstitutional the Ethics Commission Reform Act of 2022, the 2022–2023 state budget and that year's Legislative/Judiciary Budget Bill. Thereafter, petitioners moved for a preliminary injunction, and respondents opposed and cross-moved to dismiss the petition.  Petitioners then filed a motion seeking, among other things, sanctions against respondents’ counsel, disqualification of respondents’ counsel, disqualification of the assigned Justice and/or removal to federal court.  Supreme Court granted respondents’ cross-motion to dismiss the petition and denied petitioners’ requests for relief.  Sassower moved to reargue, and Supreme Court denied that motion.  Sassower appeals.¹ ,²

We affirm.  Sassower contends that the assigned Justice was obligated to recuse himself from hearing the case due to a conflict of interest, insofar as the petition raised a challenge to the Legislative/Judiciary Budget Bill, through which he receives compensation.  Due to this inherent conflict on the part of the assigned Justice as well as all state Supreme Court Justices, Sassower argues, the court was required to remove the case to federal court.  These claims lack merit.  Regarding the recusal issue, as we previously held in another case brought by these same petitioners, “[t]he self-interest inherent in adjudicating a dispute involving judicial compensation would provide grounds for disqualifying not only [the assigned Justice], but every [Justice] who might replace [him or] her” (Center for Jud. Accountability, Inc. v. Cuomo, 167 A.D.3d 1406, 1408, 91 N.Y.S.3d 553 [3d Dept. 2018], appeal dismissed 33 N.Y.3d 993, 101 N.Y.S.3d 724, 125 N.E.3d 140 [2019], lv dismissed & denied 34 N.Y.3d 961, 112 N.Y.S.3d 4, 135 N.E.3d 1084 [2019];  see Matter of Maron v. Silver, 14 N.Y.3d 230, 249, 899 N.Y.S.2d 97, 925 N.E.2d 899 [2010]).  As a result, pursuant to the Rule of Necessity, the Justice assigned to this case was authorized to preside over it (see Center for Jud. Accountability, Inc. v. Cuomo, 167 A.D.3d at 1408, 91 N.Y.S.3d 553).  As for Sassower's related claim that the conflict of interest divested Supreme Court of its jurisdiction under Judiciary Law § 14, the Rule of Necessity provides an exception to that statute (see Pines v. State of New York, 115 A.D.3d 80, 90, 979 N.Y.S.2d 142 [2d Dept. 2014], appeal dismissed 23 N.Y.3d 982, 989 N.Y.S.2d 13, 11 N.E.3d 1117 [2014]).  With respect to Sassower's assertion that the court should have granted her application to remove the matter to federal court, “the right of removal is vested exclusively in [respondents and a petitioner] simply may not remove an action from a state court” (Geiger v. Arctco Enters., Inc., 910 F.Supp. 130, 131 [S.D.N.Y.1996];  see 28 USC §§ 1441[a];  1446[a]).

Petitioners’ requests for sanctions against and disqualification of the Attorney General were properly denied.  Petitioners argued that sanctions were warranted based upon legal arguments set forth in respondents’ cross-motion to dismiss the petition.  A review of this cross-motion, however, reveals that the Attorney General made reasonable arguments which did not in any manner justify the imposition of sanctions (see 22 NYCRR 130–1.1[c];  Matter of Doe v. Rensselaer Polytechnic Inst., 172 A.D.3d 1691, 1693, 102 N.Y.S.3d 303 [3d Dept. 2019];  Matter of Cobado v. Benziger, 163 A.D.3d 1103, 1107, 80 N.Y.S.3d 529 [3d Dept. 2018]).  Petitioners’ contention that the Attorney General should have been disqualified is likewise unavailing (see Executive Law § 63[1]).

Finally, any challenge to the merits of Supreme Court's dismissal of the petition is not properly before us, as Sassower's appellate brief contains no specific argument in this regard (see Matter of Barnes v. Rodriguez, 223 A.D.3d 1132, 1133–1134, 204 N.Y.S.3d 322 [3d Dept. 2024];  Ruotolo v. Fannie Mae, 127 A.D.3d 1442, 1443, 7 N.Y.S.3d 661 [3d Dept. 2015], appeal dismissed 26 N.Y.3d 983, 18 N.Y.S.3d 595, 40 N.E.3d 573 [2015]).³  To the extent that she attempts to incorporate by reference documents submitted to the trial court in connection with her reargument motion, this is not an acceptable manner of presenting appellate argument (see 22 NYCRR 1250.8;  see also Galvin v. U.S. Bank, N.A., 852 F.3d 146, 159 [1st Cir.2017];  Maraschiello v. City of Buffalo Police Dept., 709 F.3d 87, 92 [2d Cir.2013], cert denied 571 U.S. 824, 134 S.Ct. 119, 187 L.Ed.2d 36 [2013]).  Sassower's remaining contentions have been considered and found to be unpersuasive.

ORDERED that the appeal from the order is dismissed, without costs.

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Supreme Court dismissed all claims brought by the Center for Judicial Accountability, Inc. on the ground that it was not represented by an attorney, as required for a corporation to bring a civil action (see CPLR 321[a]).  This aspect of the court's ruling has not been challenged.

2.   As no appeal lies from the denial of a motion to reargue, the appeal from the order denying that motion must be dismissed (see Matter of Walker v. Fernandez, 225 A.D.3d 1015, 1016, 205 N.Y.S.3d 291 [3d Dept. 2024]).

3.   Recognizing that one of petitioners’ causes of action challenged the constitutionality of the statutory provisions which created the Commission on Ethics and Lobbying in Government, we note that we recently held those provisions to be unconstitutional, albeit on different grounds than those argued by petitioners (see Cuomo v. New York State Commn. on Ethics & Lobbying in Govt., ––– A.D.3d ––––, ––––, ––– N.Y.S.3d ––––, 2024 N.Y. Slip Op. 02568, *3–5 [3d Dept. 2024]).

Ceresia, J.

Garry, P.J., Clark, Fisher and Powers, JJ., concur.