Defendant claims that plaintiff and its counsel, Berkman, Henoch, Peterson & Peddy, P.C. (Berkman, Henoch), violated my August 9, 2005 decision and order in this case, in which I stayed my March 21, 2005 decision and order granting summary judgment to plaintiff. Defendant's proposed order to show cause requests, inter alia, that plaintiff and Berkman, Henoch be found guilty of criminal and/or civil contempt, and be fined and/or jailed. However, I must recuse myself from the case. I am a petitioner in an Article 78 proceeding in which the Hon. Mark Weprin, of the 24th Assembly District in Queens, is a member of respondent New York State Assembly, and is affiliated with Berkman, Henoch.

Nassau County District Court Judge Edward Maron, Nassau County Supreme [*2]Court Justice Joseph De Maro, and I are petitioners in an Article 78 proceeding against Governor Eliot Spitzer, the Assembly, Assembly Speaker Sheldon Silver, the State Senator, State Senate Majority Leader Joseph Bruno, Comptroller Thomas Di Napoli and the Office of Court Administration, for, among other things, their continued violation of the New York State Constitution, by allowing diminishment of judicial compensation by inflation during our term of office. New York States judges have not had a pay increase for almost nine years. Assembly Member Weprin, unlike myself and my fellow New York State judges, is not precluded from earning additional income. Mr. Weprin, according to the Office of Court Administration's Attorney Registry, lists Berkman, Henoch's Garden City, New York office as his "business address." A visit to Berkman, Henoch's website, www.bhpp.com, shows that Mr. Weprin is of counsel to the firm. One page of the website has a photograph of Mr. Weprin's handsome, smiling face, as he wears a bright gold-colored color. It would be improper for me, as a petitioner in a separate action against the New York State Assembly, to fine or jail Berkman, Henoch attorneys, including Mr. Weprin, a member of the New York State Assembly, with or without his bright gold-colored tie, because of Mr. Weprin's status as a member of one of the respondents in my lawsuit. On the other hand, it would be equally improper for me to issue a decision and order in favor of plaintiff and Berkman, Henoch because of Mr. Weprin's status as a member of the New York State Assembly.

In the instant action, a tortured, fourteen year saga concerning the ownership of 36 Taylor Street, Brooklyn, New York, I issued a decision and order, dated March 21, 2005, granting plaintiff's motion for reargument of its summary judgment motion on the complaint and defendant's cross-motion for summary judgment dismissing the complaint, which were determined by Justice Melvin Barasch in a decision and order, dated June 13, 2003. I heard the case because, after Justice Barasch's December 31, 2004 retirement, his case inventory was assigned to me by the Kings County Supreme Court Administrative Judge. On March 21, 2005, after reargument, I vacated Justice Barasch's prior decision and order, and granted summary judgment to plaintiff and denied summary judgment to defendant.

The Appellate Division, Second Department, in its March 20, 2007 decision and order, 38 AD3d 715, unanimously affirmed my March 21, 2005 decision and order, holding that "the Supreme Court properly, in effect, determined that, upon the issuance of a referee's deed in an underlying mortgage foreclosure action in the Supreme Court, Kings County entitled Marine Midland Mortgage Corp. v Mittleman, Index No.

10435/93, the defendant is barred from claiming any right, title, or interest in the subject premises." Subsequently, on June 12, 2007, the Appellate Division unanimously denied defendant's application for reargument and for leave to the Court of Appeals in accordance with CPLR § 5602. Defendant, on July 2, 2007, filed a motion with the Court of Appeals for an order granting leave to appeal the March 20, 2007 decision and order of the Appellate Division, Second Department. [*3]

Subsequent to my March 21, 2005 decision and order, defendant moved by order to show cause to vacate my award of summary judgment to plaintiff. In my August 9, 2005 decision and order, I denied defendant's order to show cause with prejudice. However, I granted a stay of summary judgment to plaintiff pending an appeal, pursuant to CPLR § 5519 (a) (6), if defendant posted an undertaking of $350,000.00 by September 8, 2005. Defendant posted the undertaking in a timely manner.

Defendant's proposed order to show cause, filed with the Court on August 24, 2007, alleges that plaintiff and Berkman, Henoch, violated my August 9, 2005 decision and order, by intentionally divesting defendant of possession and ownership of 36 Taylor Street in early July 2007. Defendant, in his affirmation in support of the proposed order to show cause, requests that I sign the instant proposed order to show cause and issue, after plaintiff and Berkman, Henoch can be heard, an order finding that plaintiff and Berkman, Henoch are: in civil contempt for violation of CPLR § 5104 and Judiciary Law § 753 (3); in criminal contempt for violation of Judiciary Law § 750 (3); sanctioned for their "willful and improper conduct." Further, defendant requests that the sale of 36 Taylor Street be voided, and "that plaintiff and plaintiff's counsel be compelled to disclose the Court of Appeals that they have intentionally and willfully violated the stay pending appeal." In the proposed order to show cause, defendant requests that an order should be granted for the issuance by the Court of a warrant of attachment "commanding the Sheriff to arrest plaintiff and plaintiff's counsel, and to produce them before this Court, for a hearing on whether plaintiff and plaintiff's counsel should be remanded to the custody of the New York City Department of Correction."

In late December 2006, I became a petitioner in a Nassau County Supreme Court Article 78 proceeding, EDWARD A. MARON, ARTHUR SCHACK, and JOSEPH DE MARO v SHELDON SILVER, as Speaker of the New York State Assembly, NEW YORK STATE ASSEMBLY, JOSEPH BRUNO, as the Temporary President of the New York State Senate, NEW YORK STATE SENATE, GEORGE PATAKI, as Governor of the State of New York, "JOHN DOE" as the Acting Comptroller of the Sate of New York, and the OFFICE OF COURTADMINISTRATION, Index Number 21984/06. The venue of this action was subsequently transferred to Albany County Supreme Court, Index Number 4108/07. The caption has been amended to replaced "GEORGE PATAKI, as Governor of the State of New York" with "ELIOT SPITZER, as Governor of the State of New York," and " John Doe' as the Acting Comptroller of the State of New York" with "THOMAS DINAPOLI as the Comptroller of the State of New York." This action seeks, among other things, a determination that:the Legislatures's 2006-07 appropriation for judicial pay raises were final and complete; judges' compensation has been unconstitutionally diminished in violation of Article VI, § 25(a) of the New York State Constitution; and respondents' improper linkage of judicial salary increases with unrelated legislative initiatives, among other factors, violates the equal protection clause of Article I § 11 of the New York State Constitution. [*4]

Judge Bellacosa, for a unanimous Court of Appeals, in People v Moreno, 70 NY2d 403, 405 (1987) instructed that "[a]bsent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal." The Court, in Schwartzberg v Kingsbridge Heights Care Center, Inc., 28 AD2d 465, 466 (2d Dept 2006), held that "[i]n the absence of a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and his or her decision is a matter of discretion and personal conscience (see People v Moreno, 70 NY2d 403, 405)." In Poli v Gara, 117 AD2d 786, 788-789 (2d Dept 1986), the Court stated that "[t]he question of whether a Judge should recuse himself to avoid an appearance of impropriety is a matter left to the personal conscience of the court (e.g., Matter of Johnson v. Hornblass, 93 AD2d 732 [1d Dept 1983]; Casterella v. Casterella, 65 AD2d 614 [2d Dept 1978]). See People v Fischer, 143 AD2d 1036 (2d Dept 1988); People v Gallagher, 158 AD2d 469 (2d Dept 1990); Warm v State, 265 AD2d 546 (2d Dept 1999);In re Jimmy H., 274 AD2d 430 (2d Dept 2000); People ex rel. Smulczeski, ex rel. Smulczeski v Smulczeski, 18 AD3d 785 (2d Dept 2005); Tornheim v Tornheim, 28 AD3d 534 (2d Dept 2006); Montesdeoca v Montesdeoca, 38 AD3d 666 (2d Dept 2007); Kupersmith v Winged Foot Gold Club, Inc. 38 AD3d 847 (2d Dept 2007).

To avoid any potential appearance of impropriety in the instant case, with Assembly Member Weprin affiliated with Berkman, Henoch, plaintiff's counsel, I must recuse myself from this matter. If I were to rule for defendant and possibly find plaintiff and Berkman, Henoch in contempt, it might be construed as retaliation against the Legislature by an aggrieved judge. Conversely, if I were to deny the instant order to show cause, it could be perceived as an attempt to curry favor with Mr. Weprin and his 211 colleagues in the New York State Assembly and Senate. While I am sure I can be fair and impartial in deciding the instant proposed order to show cause, in the exercise of discretion and good conscience, and to avoid any speculation as to the rationale for my ruling, it is necessary that I immediately recuse myself from this case.

Accordingly, it is

ORDERED, that I recuse myself from the instant action and from signing defendant's proposed order to show cause, which requests that plaintiff and its counsel, Berkman, Henoch Peterson & Peddy, P.C., be found to in criminal and/or civil contempt, and punished accordingly, and it is further

ORDERED that this proposed order to show cause is returned to the Clerk for

reassignment to another Justice of the Supreme Court, Kings County, Civil Term.

This constitutes the Decision and Order of the Court. [*5]

ENTER

__________________________

HON. ARTHUR M. SCHACK

J. S. C.