[*1]
Brongo v Community Dev. Props.
2013 NY Slip Op 51002(U) [40 Misc 3d 1202(A)]
Decided on June 11, 2013
Supreme Court, Monroe County
Polito, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on June 11, 2013
Supreme Court, Monroe County


Donna M. Brongo a/k/a DONNA M. BRONG-MEAGHER, Plaintiff,

against

Community Development Properties, MONROE, INC., MONROE COMMUNITY SPORTS CENTRE CORPORATION, EMPIRE ICE, LLC, AND EAST WEST ARENAS INC., Defendants.




12/5961



DAVIDSON FINK LLP

PAUL D. KELLY, ESQ., of Counsel

Attorneys for Plaintiff

Office and P.O. Address

28 East Main Street, Ste 1700

Rochester, NY 14614

DAMON MOREY, LLP

KARA M. ADDELMAN, ESQ., of Counsel

Attorneys for Defendants

Office and P.O. Address

The Avant Building, Suite 1200

200 Delaware Avenue

Buffalo, NY 14202

William P. Polito, J.



Motion held on submission only on June 4, 2013 Special Term Motion Calendar

_____________________________________________________________ __________

D E C I S I O NA N DO R D E R


__________________________________________________ _____________________

POLITO, J.

The defendants, Monroe Community Sports Centre Corporation and East [*2]West Arenas, Inc., seek a recusal of the assigned Judge pursuant to CPLR 510(2) asserting "that an impartial trial cannot be had in the proper county." Defendant's counsel points to the plaintiff being the secretary of one of the Supreme Court Justices sitting in the Hall of Justice in Monroe County.

However, the defendants further seek to transfer the case specifically to Genesee County, which is outside the eight county Seventh Judicial District, and in the judicial district where the defendant's attorneys have their offices. The reason purportedly is for the convenience of material witnesses pursuant to CPLR 510(3). That section also requires that the ends of justice be promoted by the change. The Court does not find any grounds to particularly support the latter element to be in Genesee County.

Nor does the Court find that the plaintiff being the secretary to one of the Justices is sufficient to establish recusal by all of the Supreme Court Justices with chambers in Monroe County for impartiality. If granted, then anytime a plaintiff is related to a Judge, or an employee of the Court System which serves the Judge, such facts would automatically constitute grounds for recusal. The Courts have denied recusal even when the plaintiff is the sitting Surrogate Court Judge of that County. (Midonick v. Peppertree Hill Develop. Corp., 29 AD2d 721, (1st Dept., 1975)).

However, the Court does believe that his relationship with Judge Ark might influence his determination, and does therefore recuse himself.

Upon recusal, it is the policy of the assignment office to assign the case off the wheel in accordance with its rules, including any rules or directives promulgated by the Administrative Judge for such situations.

The Court also notes that the outlying County Judges are designated as "Acting Supreme Court Judges" in the Hall of Justice. They are not in physical and/or relational proximity to the sitting Supreme Court Justices in the Hall of Justice, or to the court employees of Monroe County.

Accordingly, the Court recuses itself and remands the matter to the Assignment Office for further assignment. [*3]

This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. Attorney for the defendants is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.

SO ORDERED.

Dated this 11th day of June, 2013 at Rochester, New York.

______________________________

HON. WILLIAM P. POLITO

JUSTICE SUPREME COURT