IN RE: YONKERS FIREFIGHTERS (2019)

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the City of Yonkers dated August 22, 2014, which terminated the employment of the petitioner Christopher Giardini, the petitioners appeal from an order of the Supreme Court, Westchester County (Susan Cacace, J.), entered August 16, 2017.  The order denied the petitioners' motion for recusal of the Supreme Court Justice presiding over this proceeding, and to vacate a judgment of the same court entered February 16, 2016.

ORDERED that the order is affirmed, with costs.

The petitioners commenced this proceeding pursuant to CPLR article 78, inter alia, to review a determination of the City of Yonkers terminating the employment of the petitioner Christopher Giardini with the City of Yonkers Fire Department.  In a judgment entered February 16, 2016, the Supreme Court denied the petition and dismissed the proceeding.  Approximately 13 months later, the petitioners moved for recusal of the Supreme Court Justice presiding over this proceeding, and to vacate the judgment entered February 16, 2016.  The Supreme Court denied the motion, and the petitioners appeal.

We agree with the Supreme Court's denial of the petitioners' motion, inter alia, for mandatory disqualification of the Supreme Court Justice pursuant to Judiciary Law § 14 and Canon 3(E)(1)(d)(i) of the Code of Judicial Conduct (22 NYCRR 100.3), and, upon her disqualification, to vacate the judgment of the same court entered February 16, 2016.  Judiciary Law § 14 prohibits a trial judge from presiding over any proceeding “if he [or she] is related by consanguinity or affinity to any party to the controversy within the sixth degree.”  Similarly, Code of Judicial Conduct Canon 3(E)(1)(d)(i) calls upon a judge to disqualify himself or herself in a proceeding in which a person “known by the judge to be within the sixth degree of relationship” to the judge is “a party to the proceeding.”  Here, the record does not reveal that any person related to the Supreme Court Justice is a party to this proceeding.  Thus, mandatory disqualification pursuant to Judiciary Law § 14 and Canon 3(E)(1)(d)(i) of the Code of Judicial Conduct was not required (see People v. Leonard, 37 A.D.3d 1148, 1149, 829 N.Y.S.2d 369;  People v. Roberts, 6 A.D.3d 942, 942, 775 N.Y.S.2d 424;  People v. Griffiths, 155 A.D.2d 777, 779, 548 N.Y.S.2d 89).

With regard to the question of discretionary recusal, we likewise agree with the Supreme Court's denial of the petitioners' request for recusal of the Supreme Court Justice based on alleged impropriety or bias.  Absent a legal disqualification under Judiciary Law § 14, “the determination concerning a motion seeking recusal based on alleged impropriety, bias, or prejudice is within the discretion and ‘the personal conscience of the court’ ” (Daniels v. City of New York, 96 A.D.3d 895, 895, 946 N.Y.S.2d 510, quoting People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200;  see Sassower v. Gannett Co., Inc., 109 A.D.3d 607, 609, 972 N.Y.S.2d 41).  “Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist” (People v. Alomar, 93 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958 [citation omitted];  see Ralis v. Ralis, 146 A.D.3d 831, 833, 46 N.Y.S.3d 631;  Matter of Khan v. Dolly, 39 A.D.3d 649, 650–651, 833 N.Y.S.2d 608).  The denial of a recusal motion will constitute an improvident exercise of discretion only where the movant puts forth demonstrable proof of the judge's bias or prejudgment (see Matter of Rodriguez v. Liegey, 132 A.D.3d 880, 880–881, 18 N.Y.S.3d 161;  Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d 465, 466, 813 N.Y.S.2d 191;  Modica v. Modica, 15 A.D.3d 635, 636, 791 N.Y.S.2d 134).  “ ‘[A]bsent a showing of actual bias or a statutory basis for recusal, proceedings conducted prior to a motion for recusal, or prior to a voluntary withdrawal from the case, remain valid’ ” (Ulrich v. Estate of Zdunkiewicz, 8 A.D.3d 1014, 1014, 778 N.Y.S.2d 582, quoting Rochester Community Individual Practice Assn. v. Excellus Health Plan, 305 A.D.2d 1007, 1008, 758 N.Y.S.2d 576;  see Matter of Kurz v. Justices of Supreme Ct. of N.Y., Kings County, 228 A.D.2d 74, 76, 654 N.Y.S.2d 783).

Here, the petitioners failed to present any evidence that the Supreme Court Justice had any improper interest in the outcome of this proceeding or harbored actual bias against the petitioners so as to warrant the conclusion that her denial of their recusal request was an improvident exercise of discretion (see Matter of Bianco v. Bruce–Ross, 151 A.D.3d 716, 717–718, 56 N.Y.S.3d 243;  Matter of Imre v. Johnson, 54 A.D.3d 427, 428, 863 N.Y.S.2d 473;  Schreiber–Cross v. State of New York, 31 A.D.3d 425, 819 N.Y.S.2d 530;  Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d at 466, 813 N.Y.S.2d 191).

Accordingly, the petitioners' motion was properly denied.

MASTRO, J.P., RIVERA, BALKIN and MALTESE, JJ., concur.