Upon the reading of the following papers: (1) Notice of Motion Disqualification Of Judge H. Patrick Leis III And To Stay Trial For Lack Of Jurisdiction dated March 17, 2014, by defendant Marie Tooker including supporting papers and exhibits; (2) Attorney's Affirmation In Opposition To Defendant's Motion To Stay Trial And To Disqualify Hon. Patrick Leis dated March 28, 2014; (3) Defendant's Affidavit In Opposition To Plaintiff's Opposition To The Disqualification Of Judge H. [*2]Patrick Leis III And To Stay Trial For Lack Of Jurisdiction dated April 7, 2014; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the defendant's motion (sequence 008), which seeks an order of the Court recusing itself from the instant proceedings, is hereby denied; and it is further

The defendant in this motion (sequence 008) seeks the disqualification of this court from hearing and determining a nonjury trial which began on March 19, 2014. The defendant filed this motion on March 18, 2014, one day prior to the scheduled commencement of this trial. It was made returnable on April 1, 2014, thirteen days after the commencement of the trial.^[FN1]

On the first day of trial, when made aware of the defendant's impending motion to disqualify the court that was not yet before the court, the court entertained an oral application by the defendant for this relief in order to determine whether a stay of the trial pending a full submission of papers was warranted. The defendant's oral application, however, was devoid of any merit. Accordingly, after hearing from the plaintiff and his counsel who opposed the motion on the record, the oral application was denied as having no basis in law or in fact. The court now considers the submitted motion. For the following reasons set forth below, the court also denies the defendant's written motion (sequence 008).

The defendant submits in her papers that this court has demonstrated on the record actual impropriety, prejudice against her and bias in favor of the plaintiff.^[FN2] Without any transcripts supporting her claims, the defendant makes incredulous and outrageous allegations totally unsupported by the record or the plaintiff's recollection of the events. The defendant's allegations and conduct appear to be calculated to force another recusal. Indeed, ten judges have already issued recusal orders in this case.

Pursuant to 22 NYCRR §100.3, "[a] judge shall perform the duties of judicial office impartially and diligently." More specifically, 22 NYCRR §100.3(B) mandates in relevant part: "(1) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism." With regard to a party's motion for the Court to recuse itself, absent a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter on the issue of recusal (York v York, 98 AD3d 1038 [2d Dept 2012]). [*3]Where the party seeking recusal fails to demonstrate that any determinations in the case were the result of bias, the Court providently exercises its discretion in declining to recuse itself from the case (id.; DiSanto v DiSanto, 29 AD3d 936 [2d Dept 2006]). In this case, to grant the defendant's baseless motion to avoid the defendant's false allegations would not only violate the courts duty "to be faithful to the law" and not be swayed "by fear of criticism" but would also result in yet another delay in this proceeding and prejudice the plaintiff's right to obtain a timely trial of his causes of action.^[FN3] Because this court has not made a determination that it cannot be fair and impartial, its decision to disqualify itself and recuse would cause this court to violate its duty under The Canons of Judicial Conduct (see 22 NYCRR § 100.3).

The court finds no basis in fact or in the record for the defendant's allegation that the court said "when you have money you can buy your own judge in Suffolk County Supreme Court." Also, the court finds no basis in fact or in the record to support the defendant's claim that the court coerced or put undue pressure on the defendant to settle this matter. Nor is there any basis in fact or in the record for the defendant's allegation that the court directed the defendant to go privately into chambers to access the plaintiff's discovery. Additionally, the defendant similarly fails to support her allegation that the court engaged in an improper ex-parte communication with the plaintiff after she stormed out of the

court room.^[FN4] Finally, there is no basis to the defendant's allegation "when I asked your Honor on the record if I needed to pay a fee to affirm my demand your replied that I did not."^[FN5]

The defendant also misunderstands or misconstrues various court proceedings and interactions with the parties. For example, the defendant alleges that there were "dilatory tactics between the judges." She argues that when a different Judge who was assigned a matter apparently involving these parties under a 2008 index number, issued a recusal order in that separate case in 2009, such recusal was somehow a delaying tactic in this case. In addition, the defendant inexplicably argues that when this 2010 case was randomly assigned to the first court and that court then issued a recusal order in this matter, somehow that recusal order "trampled [her] constitutional rights."

Furthermore, the defendant contends that this court acted as the plaintiff's attorney "representing his best interest" on November 15, 2011, when it gave the plaintiff 60 days to get a new attorney even though, according to the defendant, the plaintiff had already relieved his [*4]attorney and responded pro se to the defendant's then pending order to show cause. The defendant, however, has neglected to include the fact that the plaintiff's attorney at the time had made a motion to be relieved and in granting that motion the court was required to give the plaintiff time to retain a new attorney if he so chose.^[FN6] The defendant argues that on the next appearance date of January 17, 2012, the court "engaged in violation of his oath of office when he acted as the plaintiffs' attorney assisting him with help on what to say." In support, the defendant points to the fact that the court asked the plaintiff several times what relief he was seeking on that date. Such questioning was necessitated because the plaintiff was hard of hearing. Indeed, a hearing device provided by the court system for the hearing impaired was made available to the plaintiff at that time.

Moreover, the defendant argues that the court treated her unfairly in its directives concerning the discovery disputes raised by the defendant during the case. The defendant had made many informal and formal discovery demands of the plaintiff to produce voluminous documents, yet she did not want copies provided to her by the plaintiff as she feared the plaintiff would not give her everything. The court fashioned a compromise which entailed both parties working together to copy the materials at a local photocopying store. This, however, failed when the parties could not remain in the same room together. The court then directed the plaintiff to create a log of all the documents, and to bring it and the documents to court. The plaintiff complied and produced the originals and a log. A jury room or a deposition room was made available to the defendant and a court officer was present to oversee the defendant's inspection of the documents. The defendant was instructed to compare the documents with the log and afterwards, if the log accurately reflected the documents, she was directed to sign the log before removing the originals to make her own copies. When the defendant refused to sign the log she was denied an opportunity to remove the original documents from the courthouse. The documents were, however, made available for her review and inspection for a specified number of days during which the original items of discovery were held in the courtroom. The defendant never availed herself of the opportunity to inspect the discovery provided by the plaintiff. Instead, she improperly moved for relief by letter which was dated two days prior to the scheduled certification conference, and demanded that the court make copies of all of the materials, mail them to her and disqualify itself.^[FN7] When the plaintiff appeared for the regularly scheduled compliance conference on December 6, 2012 and the defendant did not, the court certified the case as ready for trial and remanded it to the Calendar Control Part (see 22 NYCRR §202.3).^[FN8] [*5]

On January 4, 2013, the plaintiff filed his Note of Issue and demanded a nonjury trial. The defendant failed to timely file a jury demand pursuant to CPLR § 4102 and 22 NYCRR § 202.21. Nor did the defendant avail herself of 22 NYCRR § 202.21(e) or CPLR § 4102(e). After this case was reached for trial in the Calendar Control Part, it was referred back to the IAS judge for a bench trial as is the practice in nonjury trials. Such bench trial began in this court on March 19, 2014. Approximately the day before trial, over a year after the filing of the Note of Issue in this case, the defendant filed an untimely and thus unavailing, request for a jury trial.^[FN9]

Ultimately, a court's recusal is not warranted as a matter of law where there is no merit to the contention that the party seeking recusal will be denied a fair hearing if the court fails to recuse itself from presiding over the subject proceedings and making fact-finding determinations (see In re Susan B., 264 AD2d 478, 694 NYS2d 454 [2d Dept 1999]). Moreover, where there is no evidence of bias or prejudice on the part of the presiding judge, it is not an improvident exercise of discretion to deny a motion seeking recusal of the judge (Richardson v Richardson, 80 AD3d 32 [2d Dept 2010] Muller v Muller, 221 AD2d 635 [2d Dept 1995] Zirkind v Zirkind, 218 AD2d 745 [2d Dept 1995]). Based upon the foregoing, inasmuch as the movant has failed to demonstrate that she will be denied a fair trial if the court does not recuse itself from these proceedings, the motion seeking recusal is denied.

This constitutes the Decision and Order of the Court.

Dated:April 15, 2014ENTER

Central Islip, NY

__________________________

Hon. H. Patrick Leis, III, J.S.C.