In this real estate foreclosure action, plaintiff moves for a judgment of foreclosure and sale. Plaintiff's motion for a judgment of foreclosure and sale was submitted to me by Part 72, which deals with ex parte applications, on December 13, 2007.

Upon review, I must recuse myself from this matter to avoid any appearance of impropriety because the Hon. Neil D. Breslin, a member of the New York State Senate, is of counsel to plaintiff's law firm, Hiscock & Barlcay. LLP. Senator Breslin represents the 46th Senatorial District, which is entirely in Albany County. In December 2006, I joined two other judges in an Article 78 proceeding, to obtain long overdue judicial pay raises. One of the captioned-respondents in our Article 78 proceeding is the New York State Senate. When a judicial pay raise bill, 2007 NY Senate S 5513, came up for a rollcall vote in the State Senate on April 30, 2007, the Hon. Neil D. Breslin voted against a judicial pay raise.

Senator Breslin, unlike myself and my fellow judicial colleagues, is not precluded from earning additional income. Senator Breslin's firm is not appearing in the instant action pro bono. In fact, Hiscock & Bradley, LLP, requests that the Court award it attorneys' fees of $1,937.00. It would be improper for me, as a petitioner in a separate action against the New York State Senate, to adjudicate the instant matter because Senator Breslin is a New York State Senator.

In further support of my decision to recuse, it is important to present the events of

late April 2007. Senator John De Francisco, Chairman of the Judiciary Committee, introduced 2007 NY Senate Bill S 5313 on April 25, 2007. Originally, all 62 members of the State Senate were sponsors. Then, the pay raise bill, as reported by Joel Stashenko, in his May 1, 2007 New York Law Journal article, "Senate Passes Raise for Judges But Future of Bill Is in Doubt," was in the words of Chief Judge Judith S. Kaye, "caught, trapped and ensnared in the jaws of Albany politics." Mr. Stashenko reported that

All but one Senate Democrats, who had all agreed to sponsor the

pay raise bill when it was introduced last week, abruptly pulled

their names off the bill yesterday morning. Senate Minority Leader

Malcolm Smith said the Senate has approved some reforms but can

do more, including the adoption of a campaign finance reform bill

that Democratic Governor Eliot Spitzer has been promoting.

While the Senate had enough votes to pass the bill yesterday,

34-24, its abandonment by Senate Democrats put the fate of the measure

in doubt nevertheless. Mr. Spitzer's spokesman Darren Dopp said

following the vote that the governor would veto the bill if it reaches his

desk, and the 33 Senate Republicans are nine votes shy of the 42 votes

necessary to override a veto. Few, if any, of the 29 Democrats are

considered likely to join Republicans in voting to override a veto by

the Democratic governor.

Senator Breslin was one of the 24 Senators to vote "nay" on S 5313. Senator Breslin's "nay" vote, after sponsoring S 5313, is intriguing in that the Senator's brother, the Hon. Thomas A. Breslin, has been a judge since 1990. Judge Breslin was elected in 1993 as Judge of the [*3]Albany County Court, and has been since 1998 an Acting Supreme Court Justice in the Third Judicial District. He is now the Supervising Judge for all Criminal Courts in the Third Judicial District. At this time of the year, when families gather to celebrate the holiday season, how much joy can there be at the Breslin family table, after brother Neil voted not only against all the judges of this state, but his own brother, Thomas. While this fraternal betrayal might not rank with that of Cain and Abel, Senator Breslin should realize that we are all our brothers' keepers, even if our brother is a judge and is well deserving of a pay raise after nine years.

Further, in his May 1, 2007 article, Mr. Stashenko reports:

The pullout of Senate Democrats from sponsoring the bill came

as more than 100 judges gathered in front of the Court of Appeals for

the annual observance of Law Day.

Chief Judge Kaye asked the judges, members of the 13

organizations representing judges in the state court system, to attend

the ceremony in a show of solidarity with her and to demonstrate how

crucial the judiciary believes the pay increase is.

In her speech, she said judges were "shocked and dismayed"

when the state Legislature completed adopting the 2007-08 state

budget on April 1 without including a judicial pay increase.

"No raises for the judges, no retroactivity, not even cost-of-

living increases for no reason that is related to us, or to the merit of

our cause and absolutely nothing that is within our power to change,"

the chief judge told a wind-blown gathering of more than 300 people,

double the normal turnout for Law Day in Albany. "Tell me, does

anyone wonder why we are upset? Could there be any question as to

why the judges of the New York state courts are upset, distressed,

angered?"

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); Independence Party State Committee of the State of New York v Berman, 20 AD3d 423 (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).

Thus, to avoid any potential appearance of impropriety in the instant case, with Senator [*4]Breslin voting against a judicial pay raise and being of counsel to plaintiff's law firm in the instant action, I must recuse myself from this matter. If I were to rule against the plaintiff it might be construed as retaliation against the Legislature by an aggrieved judge, who in the words of Chief Judge Kaye on Law Day 2007, asked if there could "be any question as to why the judges of the New York state courts are upset, distressed, angered?" Conversely, if I were to rule for the plaintiff, it could be perceived as an attempt to curry favor with Senator Breslin and his 211 colleagues in the New York State Assembly and Senate. While I can continue to be fair and impartial in deciding the instant matter before me, in the exercise of discretion and good conscience, and to avoid any speculation as to the rationale for my rulings, it is necessary that I must recuse myself.

ORDERED, that I recuse myself forthwith from the instant action.

This constitutes the Decision and Order of the Court.

ENTER

__________________________

Hon. Arthur M. Schack

J. S. C.