MCAULIFFE v. MCAULIFFE (2022)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Guy P. Tomlinson, J.), entered August 25, 2020 in Saratoga County, which denied defendant's motion for recusal.

Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were divorced in 2006 and have three children who are now adults.  The history of their long-running and acrimonious dispute is more thoroughly discussed in our most recent December 2021 decision (200 A.D.3d 1114, 160 N.Y.S.3d 380 [2021]).  Pertinent to this appeal, the extensive litigation between the parties has been overseen by numerous judges in both Supreme Court and Family Court.  Since 2016, Justice Guy P. Tomlinson has overseen this action in Supreme Court following the voluntary recusal of Justice Joseph Sise. While the appeal underlying our December 2021 decision was pending, the wife moved for Justice Tomlinson to recuse himself due to a myriad of perceived biases based on her belief that Justice Tomlinson had disregarded this Court's February 2010 decision (70 A.D.3d 1129, 895 N.Y.S.2d 228 [2010]).  Following oral argument, Justice Tomlinson denied the motion, stating that he was unaware of any grounds for mandatory disqualification and that there was no objective evidence to support the wife's claims that he was biased against her.  The wife appeals.¹

We affirm.  “Unless disqualification is required under Judiciary Law § 14, a judge's decision on a recusal motion is one of discretion, and when recusal is sought based upon impropriety as distinguished from legal disqualification, the judge is the sole arbiter” (People v. Herron, 199 A.D.3d 1476, 1476, 157 N.Y.S.3d 221 [4th Dept. 2021] [internal quotation marks, brackets, ellipsis and citations omitted];  see 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 denied 34 N.Y.3d 961, 112 N.Y.S.3d 4, 135 N.E.3d 1084 [2019];  Matter of Albany County Dept. of Social Servs. v. Rossi, 62 A.D.3d 1049, 1050, 880 N.Y.S.2d 199 [3d Dept. 2009]).  The wife concedes that this matter does not concern mandatory recusal pursuant to Judiciary Law § 14 and the record contains no indication that Justice Tomlinson had any interest in the litigation that would bear on his ability to remain impartial (see Matter of Patrick UU. v. Frances VV., 200 A.D.3d 1156, 1160–1161, 160 N.Y.S.3d 367 [3d Dept. 2021];  Matter of Khan v. Dolly, 39 A.D.3d 649, 650–651, 833 N.Y.S.2d 608 [2d Dept. 2007]).  Rather, the wife's primary contentions are premised on her dissatisfaction with the court's rulings, which, contrary to her assertion, do not present appropriate grounds for recusal (see Mokay v. Mokay, 124 A.D.3d 1097, 1099, 2 N.Y.S.3d 642 [3d Dept. 2015];  Gonzalez v. L'Oreal USA, Inc., 92 A.D.3d 1158, 1160, 940 N.Y.S.2d 328 [3d Dept. 2012], lv dismissed 19 N.Y.3d 874, 947 N.Y.S.2d 48, 969 N.E.2d 1163 [2012];  Oakes v. Muka, 56 A.D.3d 1057, 1059, 868 N.Y.S.2d 796 [3d Dept. 2008]).  Moreover, the record does not support the wife's contention that Justice Tomlinson's orders were the result of bias rather than the merits of the case (see Affinity Elmwood Gateway Props.  LLC v. AJC Props. LLC, 113 A.D.3d 1094, 1096, 978 N.Y.S.2d 565 [4th Dept. 2014];  Matter of McLaughlin v. McLaughlin, 104 A.D.3d 1315, 1316, 961 N.Y.S.2d 838 [4th Dept. 2013];  Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d 465, 466, 813 N.Y.S.2d 191 [2d Dept. 2006];  Robert Marini Bldr. Inc. v. Rao, 263 A.D.2d 846, 848, 694 N.Y.S.2d 208 [3d Dept. 1999];  see also Matter of Compasso v. Sheriff of Sullivan County, 29 A.D.3d 1064, 1065, 814 N.Y.S.2d 773 [3d Dept. 2006]).  Accordingly, we discern no abuse of Supreme Court's discretion in its determination that recusal was not warranted (see Matter of Adams v. Bracci, 100 A.D.3d 1214, 1215–1216, 955 N.Y.S.2d 659 [3d Dept. 2012];  Kampfer v. Rase, 56 A.D.3d 926, 926–927, 867 N.Y.S.2d 742 [3d Dept. 2008], lv denied 11 N.Y.3d 716, 874 N.Y.S.2d 5, 902 N.E.2d 439 [2009]).

The wife's remaining contentions have been examined and are without merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   To the extent we have not already done so (2021 N.Y. Slip Op. 69661[U], 2021 WL 3239498 [2021]), we decline the husband's invitation to strike the wife's brief and record on appeal for similar reasons to those we have previously identified on the husband's prior motions seeking such relief (see 200 A.D.3d at 1115 n. 2, 160 N.Y.S.3d 380).

McShan, J.

Garry, P.J., Egan Jr. and Fisher, JJ., concur.