[*1]
Blue Mtn. Homes, LLC v Betancourt
2015 NY Slip Op 50687(U) [47 Misc 3d 144(A)]
Decided on May 1, 2015
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : GARGUILO, J.P., MARANO and CONNOLLY, JJ.
2013-2620 N C2014-73 N C

Blue Mountain Homes, LLC, as Successor in Interest to BANK OF NEW YORK, as Trustee for the Benefit of CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2006-26, Respondent,

against

Jessica Betancourt, KRISTINA DUPPS, LUCAS DUPPS, and MARGARET KARASZEK, Occupants, -and- MICHAEL OSTROWSKI, Appellant.


Appeals from an order of the District Court of Nassau County, First District (Douglas J. Lerose, J.), dated December 4, 2013, and from an amended final judgment of the same court (Scott Fairgrieve, J., at trial) entered December 18, 2013. The order, among other things, granted a motion by Bank of New York as trustee for the benefit of CWABS, Inc. asset-backed certificates, series 2006-26, to substitute Blue Mountain Homes, LLC as the petitioner and to amend the caption of all the papers nunc pro tunc in a summary proceeding brought pursuant to RPAPL 713 (5). The amended final judgment, insofar as appealed from, after a nonjury trial, awarded petitioner possession as against occupant Michael Ostrowski.

ORDERED that, on the court's own motion, the notice of appeal from a final judgment of the same court entered June 14, 2012 is deemed a premature notice of appeal from the amended final judgment entered December 18, 2013 (see CPLR 5520 [c]); and it is further,

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the amended final judgment, insofar as appealed from, is affirmed, without costs.

The appeal from the order dated December 4, 2013 is dismissed because the right of direct appeal therefrom terminated with the entry of the amended final judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up [*2]for review and have been considered on the appeal from the amended final judgment (see CPLR 5501 [a] [1]).

At a nonjury trial of this proceeding by a purchaser in foreclosure, occupant Michael Ostrowski requested that Judge Scott Fairgrieve recuse himself, because he had done so in connection with an earlier motion. Judge Fairgrieve denied Ostrowski's request, and informed Ostrowski that, although he had previously had an account at the Bank of New York, he no longer had an account at that institution. By a final judgment entered June 14, 2012, the Bank of New York, as trustee for the benefit of CWABS, Inc. asset-backed certificates, series 2006-26 (the Bank), was awarded possession of premises at 214 109th Avenue, Elmont, New York (the premises). Occupant Ostrowski argues on appeal that Judge Fairgrieve's failure to recuse himself constituted reversible error.


" Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court' (People v Moreno, 70 NY2d 403, 405 [1987]). A court's decision in this respect may not be overturned unless it was an improvident exercise of discretion' (D'Andraia v Pesce, 103 AD3d 770, 771 [2013]). Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist' (People v Alomar, 93 NY2d 239, 246 [1999])." (People v Suazo, 120 AD3d 1270, 1271 [2014]).


In the absence of a voluntary recusal by Judge Fairgrieve, it was incumbent on Ostrowski to demonstrate a required disqualification under Judiciary Law § 14, or proof of bias or prejudgment (see e.g. Matter of Grucci v Villanti, 108 AD3d 626, 627 [2013]; Matter of O'Donnell v Goldenberg, 68 AD3d 1000 [2009]; Daulat v Helms Bros., Inc., 57 AD3d 938 [2008]). Since Ostrowski failed to provide any such proof, we find no error in Judge Fairgrieve's determination to try the case.

Ostrowski's contention that the Bank's acquisition of title to the subject premises in a foreclosure action was improper is barred under principles of res judicata, since Ostrowski has already unsuccessfully sought to vacate the judgment of foreclosure and sale in favor of the Bank (see Dupps v Betancourt, 121 AD3d 746, 747-748 [2014]).

After the Bank was awarded the final judgment, it deeded the premises to Blue Mountain Homes, LLC (Blue Mountain) and then moved, pursuant to CPLR 1018 and 1021, for an order substituting Blue Mountain as the petitioner in this proceeding. The motion was granted over Ostrowski's opposition, and an amended final judgment was entered awarding possession to Blue Mountain.

The certified deed showing the transfer of title from the Bank to Blue Mountain constituted prima facie evidence of the transfer (see CPLR 4520; see also People v Caravousanos, 1 Misc 3d 130[A], 2003 NY Slip Op 51586[U] [App Term, 9th & 10th Jud Dists 2003]), which Ostrowski failed to refute with any objective evidence. We therefore conclude that the motion to substitute Blue Mountain as the petitioner was properly granted.

We consider no arguments made for the first time on appeal, nor do we consider any materials which are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the amended final judgment, insofar as appealed from, is affirmed.

Garguilo, J.P., Marano and Connolly, JJ., concur.


Decision Date: May 01, 2015