Gonzalez v L'Oreal USA, Inc.
2012 NY Slip Op 01391 [92 AD3d 1158]
February 23, 2012
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, March 28, 2012


Peter Gonzalez et al., Appellants, v L'Oreal Usa, Inc., Respondent.

[*1] Peter Gonzalez and Francesca Gonzalez, Troy, appellants pro se.

Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Michael J. Murphy of counsel), for respondent.

Egan Jr., J. Appeals (1) from an order of the Supreme Court (O'Connor, J.), entered August 5, 2010 in Schoharie County, which, among other things, denied plaintiffs' motion for a change of venue, and (2) from an order of said court, entered November 15, 2010 in Schoharie County, which, among other things, denied plaintiffs' motion to disqualify the assigned Acting Supreme Court Justice.

In December 2006, plaintiffs commenced this products liability action in Schoharie County—where they resided—seeking to recover for injuries allegedly sustained by plaintiff Francesca Gonzalez while coloring her hair utilizing a product purportedly manufactured by defendant. In October 2008, Supreme Court (Devine, J.) ordered plaintiffs to accept service of defendant's motion to dismiss the complaint and, in February 2009, Supreme Court partially granted that motion, leaving only plaintiffs' breach of warranty claim intact. Plaintiffs did not appeal from either of those orders. Justice Devine subsequently recused himself in August 2009, and the matter eventually was reassigned to Supreme Court (O'Connor, J.) in February 2010.

In the interim, plaintiffs brought several motions seeking, insofar as is relevant to these appeals, disqualification of Justice Devine, vacatur of the October 2008 and February 2009 orders and a change of venue from Schoharie County to Rensselaer County. Defendant, in turn, cross-moved to dismiss plaintiffs' complaint based upon their willful failure to comply with [*2]outstanding discovery demands. By order entered August 5, 2010, Supreme Court (O'Connor, J.) denied plaintiffs' numerous motions and conditionally granted defendant's cross motion to dismiss the complaint unless plaintiffs complied with the discovery demands within 30 days.[FN1] Plaintiffs thereafter moved to disqualify Justice O'Connor and, by order entered November 15, 2010, their motion was denied. These appeals by plaintiffs ensued.[FN2]

We affirm. To the extent that plaintiffs' various recusal/disqualification motions are properly before this Court, we find them to be lacking in merit. "Absent a legal disqualification under Judiciary Law § 14, which is not at issue here, a . . . judge is the sole arbiter of recusal and his or her decision, which lies within the personal conscience of the court, will not be disturbed absent an abuse of discretion" (Kampfer v Rase, 56 AD3d 926, 926 [2008], lv denied 11 NY3d 716 [2009] [internal quotation marks and citations omitted]; see Mokay v Mokay, 67 AD3d 1210, 1213 [2009]). We perceive no abuse of that discretion here. Further, "[r]ecusal, 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 NY2d 239, 246 [1999] [citation omitted]; accord Matter of Albany County Dept. of Social Servs. v Rossi, 62 AD3d 1049, 1050 [2009]; Kampfer v Rase, 56 AD3d at 926). Again, no such showing has been made here. Notably, the fact that a judge issues a ruling that is not to a party's liking does not demonstrate either bias or misconduct (see generally Oakes v Muka, 56 AD3d 1057, 1059 [2008]).

Plaintiff's motion for a change of venue also was properly denied, as plaintiffs failed to establish a "strong possibility" that an impartial trial cannot be had in Schoharie County (Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666 [1994]; accord Blaine v International Bus. Machs. Corp., 91 AD3d 1175, 1175 [2012]). "[M]ere belief, suspicion or feeling are insufficient grounds to grant a motion to change venue" (Cohen v Bernstein, 9 AD3d 573, 574 [2004]).

Finally, to the extent that plaintiffs seek to vacate the October 2008 and February 2009 orders of Supreme Court (Devine, J.), plaintiffs—as noted previously—did not appeal from either of these orders, and it is well settled that "a motion to vacate should not be utilized as a means by which to raise an issue of law that could have been pursued in the course of a timely perfected appeal" (KLCR Land Corp. v New York State Elec. & Gas Corp., 15 AD3d 719, 720 [2005]; accord Matter of Suzanne v Suzanne, 69 AD3d 1011, 1012 [2010]). As for plaintiffs' related motions to renew and/or reargue, even assuming that such motions were made in a timely fashion, no appeal lies from the denial of a motion to reargue (see Matter of Biasutto v Biasutto, 75 AD3d 671, 672 [2010]), and plaintiffs failed to satisfy the standard for renewal as they did not point to "any new facts or change in the law that would require a different determination" (Marquis v Washington, 85 AD3d 1338, 1338 [2011]; see CPLR 2221 [e] [2]). Plaintiffs' remaining arguments, to the extent that they are properly before us, have been examined and [*3]found to be lacking in merit.

Lahtinen, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the orders are affirmed, without costs.

Footnotes


Footnote 1: Defendant acknowledges in its brief that plaintiffs subsequently served timely responses to the then outstanding discovery demands.

Footnote 2: Plaintiffs also subsequently (and unsuccessfully) sought to disqualify certain members of this Court from entertaining their appeals.