Galasso v Calder (2011 NY Slip Op 50755(U))

Galasso v Calder

2011 NY Slip Op 50755(U) [31 Misc 3d 1220(A)]

Decided on April 29, 2011

Supreme Court, Dutchess County

Pagones, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The defendant moves for judgment pursuant to CPLR §3126 dismissing the plaintiff's complaint for failure to prosecute. The plaintiff submitted no opposition to the defendant's motion, but instead separately moves for an order of recusal^[FN1]. Plaintiff's motion is opposed by the defendant. For the following reasons, it is ordered that the defendant's motion is granted, the plaintiff's motion is denied, and the plaintiff's complaint is dismissed with prejudice.

This action was commenced on December 7, 2008 and issue was joined on March 24, 2008, although the plaintiff did not file a request for judicial intervention. The defendant filed an RJI on January 30, 2009 and this action was assigned to this part.

Judiciary Law §14 provides specific grounds upon which a judge must disqualify himself by reason of interest or consanguinity. The plaintiff does not suggest that any such ground exists which would require my recusal from this action. 22 NYCRR §100.3(E) contains additional circumstances which require judicial disqualification. Neither the plaintiff nor his attorney has specifically articulated any of those grounds as a basis for recusal.

The plaintiff's motion for recusal, which is not supported by either an affidavit of the plaintiff or an affirmation from plaintiff's counsel, vaguely refers to a "statement of facts" that seemingly forms the basis of the plaintiff's motion. The plaintiff's motion is also unsupported by any exhibits. In circumstances where no enumerated grounds for disqualification can be established, as in the present circumstance, it has been held that it is up to the conscience and discretion of the court to determine whether or not it should recuse itself. (Berman v. Herbert Color Lithographers Corp., 222 AD2d 640 [2nd Dept. 1995]; People v. Moreno, 70 NY2d 403 [1987].) In fact, in the absence of ill-will toward a litigant, a judge has an affirmative duty not to recuse himself but to preside over a case. (U.S. v. Mitchell, 377 F.Supp. 1312 [D.D.C. 1974], aff'd 559 F.2d 31 [D.C. Circuit 1976].) A "judge is as much obligated not to recuse himself when it is not called for as he is obligated to when it is." (In re Drexel Burnham Lambert, Inc., 861 F2d 1307, 1312 [2nd Cir. 1988].)

The plaintiff has failed to set forth any proof of bias or prejudice to warrant the conclusion that recusal is necessary in [*2]this action. The plaintiff's assertions are without merit and are unsupported by the extensive procedural history of this action, as set forth more fully below. Contrary to the plaintiff's contention, this Court has repeatedly and consistently extended the plaintiff's deadlines in order to allow the plaintiff to have his claim adjudicated on the merits. The plaintiff has failed to meet these deadlines. Moreover, the plaintiff's averment that recusal is warranted based on my being an acting supreme court justice, instead of an elected supreme court justice, is in contravention to the New York State Constitution, the Rules of the Chief Judge and the Rules of the Chief Administrative Judge. Therefore, it is ordered that the plaintiff's motion is denied.

Throughout the course of this action, the plaintiff has regularly proven himself unwilling or unable to comply with court ordered deadlines. By way of example, in response to a motion by the defendant to compel discovery, the court forwarded a proposed preliminary conference stipulation to the parties' attorneys and directed that they must appear on March 9, 2009 for a preliminary conference unless the stipulation was returned fully executed by counsel. A stipulation was not timely submitted. On the morning of March 9, 2009, the plaintiff's counsel telephoned the court requesting an adjournment of the scheduled conference upon consent of the defendant's counsel because of an illness in her family and advised the court that she intended to complete the stipulation so as to avoid an appearance. The matter was thereafter adjourned to March 23, 2009 at 10:30 a.m.

Again, a stipulation was not timely submitted. The plaintiff's counsel telephoned the court at 10:25 a.m. on March 23, 2009 to advise that she would not appear since there had been a death in her family the week prior. Counsel made no effort to contact the court or the defendant's counsel in advance and the defendant's counsel appeared on time ready to proceed. The court issued a preliminary conference order and, due to the plaintiff's failure to respond to outstanding discovery demands and failure to comply with the orders of this court, the court scheduled a compliance conference for July 15, 2009. The preliminary conference order also directed the plaintiff to complete discovery and file a note of issue by February 10, 2010.

On July 14, 2009, the plaintiff's counsel telephoned the court requesting an adjournment of the scheduled conference, which request was followed by a facsimile letter from the plaintiff's counsel. The court accommodated the plaintiff's counsel's request and rescheduled the conference for October 6, 2009 at 10:00 a.m. Defendant's counsel appeared on October 6, 2009 as scheduled. Plaintiff's counsel failed to appear. When the court inquired of the plaintiff's counsel the reason for her [*3]absence, the plaintiff's counsel responded that she failed to check her calendar and "forgot".

On January 29, 2010, the court conducted an additional compliance conference wherein the plaintiff's time to complete discovery and file a note of issue was extended to March 26, 2010. The plaintiff's time to file a note of issue was subsequently extended again to May 28, 2010. By order dated July 16, 2010, the deadline was again extended to July 22, 2010.

As a result of the plaintiff's continued failure to comply with the defendant's outstanding discovery demands, the defendant moved pursuant to CPLR §3126 for an order dismissing the plaintiff's complaint. By order dated June 29, 2010, the defendant's motion was conditionally granted and the court set forth a further discovery schedule pursuant to which the plaintiff was to comply with all outstanding paperwork discovery by July 19, 2010, appear for a deposition at defendant's counsel's office on August 4, 2010 and submit to an IME, if so demanded, on or before September 10, 2010. Plaintiff ultimately complied with the court's order, although the plaintiff's deposition was adjourned without leave of the court. The plaintiff remained delinquent in filing his note of issue.

By demand of this court dated October 18, 2010, demand was made pursuant to CPLR Rule 3216(b)(3) that the plaintiff resume prosecution of his action and serve and file a note of issue within ninety (90) days of receipt of the demand. The demand also cautioned the plaintiff that failure to comply with said demand will serve as a basis for dismissal. To date, the plaintiff has failed to file his note of issue.

The plaintiff has offered no excuse for his continued delay nor has he provided an affidavit of the merits of his action. (Rodriguez v. Colasuonno, 238 AD2d 329 [2nd Dept. 1997].) Therefore, it is ordered that the defendant's motion is granted and the plaintiff's complaint is dismissed with prejudice.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York