IN RE: EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION.

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Supreme Court, Erie County, New York.

IN RE: EIGHTH JUDICIAL DISTRICT ASBESTOS LITIGATION. Janice L. Gossel, Executrix of the Estate of Henry G. Gossel, Deceased and Individually as the Surviving Spouse of Henry G. Gossel, Plaintiff v. Beazer East, Inc., as successor in interest to Koppers Company, Inc., et al., Defendants.

Decided: September 27, 2006

Lipsitz & Ponterio, LLC, by John N. Lipsitz, Esq., Michael A. Ponterio, Esq. and John P. Comerford, Esq., Attorneys for Plaintiffs. Greenberg, Traurig, LLP, by Robert J. Kirshenberg, Esq., Shook Hardy & Bacon, LLP, by Christopher V. Cotton, Esq. and James Berger, Esq., Attorneys for Defendants Lorillard Tobacco Company. Nutter, McLennen & Fish, LLP, by Francis R. Powell, Esq., Damon & Morey LLP, by Peter Marlette, Esq., Attorneys for Defendant Hollingsworth & Vose Company. Marin Goodman, LLP, by Cassandra H. Pelissier-Donovan, Esq., Attorneys for Defendant Foseco, Inc. Walsh Roberts & Grace, by Mark Della Posta, Esq. and Keith N. Bond, Esq., Attorneys for Defendant Hudson Plastering Corporation. Feldman, Kieffer & Herman, LLP, by Mary Jo Herrscher, Esq. and Mark S. Nemeth, Esq., Attorneys for Defendants Ferro Engineering, Mader Plastering Corporation and Beazer East, Inc.

Defendants Lorillard Tobacco Company, Hollingsworth & Vose Company, Foseco, Inc., Hudson Plastering Corporation, Ferro Engineering Division, a division of Oglebay Norton Company, Beazer East, Inc., and Mader Plastering Corporation move and cross move to transfer this action to the Seventh Judicial District.   They base their motions on CPLR 510(2), which provides that the court, upon motion, may change the place of trial of an action where there is reason to believe that an impartial trial cannot be held in the proper county.

This action was commenced by Henry G. Gossel on January 12, 2006 to recover for personal injuries he allegedly sustained as the result of exposure to asbestos.   Mr. Gossel died on March 14, 2006.   His wife Janice L. Gossel, as executrix of his estate, has been substituted for him and joined individually as a plaintiff.

Defendants maintain that an impartial trial can not be held in the Eighth Judicial District due to Henry Gossel's public service as a town justice, county legislator and, particularly, as a Supreme Court Justice (1979-1995) and later as a Judicial Hearing Officer, serving sporadically in the district's Alternative Dispute Resolution program (2001-2005).   They contend that his close social and professional ties to judges and court staff, as well as his reputation for a fair judicial temperament, mandate transfer of the case to another district to avoid an appearance of impropriety that would be created if a local judge presides over the case.   Defendants do not suggest that a panel of impartial jurors cannot be found in Erie County, or elsewhere in the District.   In opposition to the motion, plaintiffs argue that defendants have not met their burden of showing a strong possibility that they cannot obtain an impartial trial in Erie County, that mere suspicion or belief is insufficient to warrant the proposed change in venue based on an appearance of impropriety.   Plaintiffs point out that of the thirty Supreme Court Justices currently sitting in this district, only eight served with Henry Gossel.   I am not one of that group.

Defendants have failed to meet their burden on this motion.   Henry Gossel's long career in public service, including his service on this court, does not warrant a presumption that an appearance of impropriety will result unless venue is changed.   Changing venue to avoid an appearance of impropriety is a matter of the court's discretion (see Saxe v. OB/GYN Assocs. P.C., 86 N.Y.2d 820, 633 N.Y.S.2d 471, 657 N.E.2d 492 [1995] ), but unfortunately there is no bright-line rule to follow.   Changing the venue of an action brought by a Supreme Court Justice from the county where she presides is appropriate (id.;   see also Arkwright v. Steinbugler, 283 A.D. 397, 128 N.Y.S.2d 823 [2nd Dept. 1954] ).   The same principle applies where the plaintiff is an Acting Supreme Court Justice (see Rothwax v. Spicehandler, 161 A.D.2d 184, 554 N.Y.S.2d 882 [1st Dept. 1990] ).   However, a change of venue of a civil action is not mandated when the plaintiff's spouse is an Acting Supreme Court Justice assigned to criminal cases (see Handler v. 1050 Tenants Corp., 295 A.D.2d 238, 744 N.Y.S.2d 161 [1st Dept. 2002];  cf. Amann v. Caccese, 223 A.D.2d 663, 637 N.Y.S.2d 217 [2d Dept. 1996] [an appearance of impropriety exists where the plaintiff's father is a resident Court of Claims Judge/Acting Supreme Court Justice, who served for two decades as a State Assemblyman] ).   In Locker v. 670 Apartments Corp., 232 A.D.2d 176, 647 N.Y.S.2d 519 [1st Dept. 1996], the fact that the plaintiff's wife was a law clerk to a justice of the supreme court in the county was insufficient to “present a strong possibility that an impartial trial can not be held here” (cf. Milazzo v. Long Island Lighting Co., 106 A.D.2d 495, 483 N.Y.S.2d 33 [2nd Dept. 1984] [venue transferred where plaintiff was a law clerk to two supreme court judges] ).Similarly, recusal is not required when the alleged victim of a crime is the chief clerk of the court in which the indictment will be tried (see People v. Bibbs, 177 A.D.2d 1056, 578 N.Y.S.2d 297 [4th Dept. 1991], lv. denied 79 N.Y.2d 918, 582 N.Y.S.2d 78, 590 N.E.2d 1206 [1992] ).

The mere fact that plaintiff's decedent was a person of some prominence and was employed at the time of his death as a judicial hearing officer does not justify an inference that an impartial trial can not be had in this district.

As aptly noted nearly 65 years ago, “[t]he mere fact that a party to an action is of some prominence or holds an official position in the county does not justify an inference that an impartial trial cannot be had in that county” (Ingo v. Casey, 175 Misc. 805, 807 [25 N.Y.S.2d 384] [1940], affd. 260 App.Div. 1024 [25 N.Y.S.2d 413] [1940];  see Bult v. Kornspan, 37 A.D.2d 672 [322 N.Y.S.2d 366] [1971];  Fishman v. Fishman, 20 A.D.2d 941 [248 N.Y.S.2d 916] [1964], lv. dismissed 15 N.Y.2d 482, [255 N.Y.S.2d 1025, 203 N.E.2d 800] [1964] ) [15 N.Y.2d] 621, [255 N.Y.S.2d 665, 203 N.E.2d 918 [1964]].

(Cohen v. Bernstein, 9 A.D.3d 573, 780 N.Y.S.2d 646 [3rd Dept. 2004] ).

Decedent, who submitted an affidavit in opposition to this motion, stated that his part-time work as a JHO did not result in “direct professional contact with any acting Supreme Court Judges.”   His work was “limited to meeting with attorneys, and trying to settle their cases, if the cases could not be settled, they were referred back to the judge presiding over such matters.”   In this respect, decedent functioned more like a member of the court staff rather than a sitting judge 1 .  Absent his JHO assignment, decedent would have been in the same position as the retired judges who were the fathers of parties in Dontzin v. Digital Rain Partners, 295 A.D.2d 140, 742 N.Y.S.2d 832 [1st Dept. 2002] and Lombardoni v. Boccaccio, 160 A.D.2d 1089, 553 N.Y.S.2d 249 [3rd Dept. 1990].   In those cases, the retired status of the fathers did not warrant a change in venue.   Thus, decedent's employment in public service and his recent part-time assignment as a JHO are not enough to satisfy defendants' burden on this motion.

A change of venue pursuant to CPLR 510(2) requires a showing of facts demonstrating a strong possibility that an impartial trial can not be obtained in the selected county (see DeBolt v. Barbosa, 280 A.D.2d 821, 720 N.Y.S.2d 283 [3rd Dept. 2001];  see also County of Onondaga v. Home Ins. Cos., 265 A.D.2d 896, 695 N.Y.S.2d 798 [4th Dept. 1999];  Jablonski v. Trost, 245 A.D.2d 338, 665 N.Y.S.2d 438 [2nd Dept. 1997];  Krupka v. County of Westchester, 160 A.D.2d 681, 553 N.Y.S.2d 777 [2nd Dept. 1990] ).  “Mere belief, suspicion or feeling are insufficient grounds to grant a motion to change venue under CPLR 510(2)” (Cohen at 574, 780 N.Y.S.2d 646;  DeBolt;  Jablonski ).   Defendants' conclusory assertions are insufficient to satisfy their burden (see Field v. Schultz, 288 A.D.2d 177, 732 N.Y.S.2d 368 [2nd Dept. 2001];  Warm v. State of New York, 265 A.D.2d 546, 697 N.Y.S.2d 148 [2nd Dept. 1999];  Fishman v. Fishman, 20 A.D.2d 941, 248 N.Y.S.2d 916 [3rd Dept.], lv. dismissed 15 N.Y.2d 482, 255 N.Y.S.2d 1025, 203 N.E.2d 800 [1964] 15 N.Y.2d 621, 255 N.Y.S.2d 665, 203 N.E.2d 918).   Furthermore, defendants have not established that any county in the Seventh Judicial District is a proper county for venue purposes (see Saxe ).   Therefore, their motions must be denied (id.;  Mikul v. Silverman, 27 A.D.3d 625, 810 N.Y.S.2d 677 [2d Dept. 2006];  Welch Foods, Inc. v. Wilson, 262 A.D.2d 949, 692 N.Y.S.2d 873 [4th Dept. 1999] ).2

SO ORDERED.

FOOTNOTES

1.   The staff of the Eighth Judicial District Alternative Dispute Resolution Program includes court attorneys as well as JHOs.

2.   Given the nature of this case, it is likely that most witnesses will be local residents.   Therefore, if likelihood of an appearance of impropriety had been established, the appropriate remedy would be assignment of an out-of-district justice to this case in order to avoid inconveniencing those witnesses (see Rothwax ).   Under the individual assignment system, all proceedings would come before the assigned justice, thereby avoiding the problem foreseen by the Rothwax Court.

JOHN P. LANE, J.

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