ADDITIONAL CASES County of Warren, acting for and on behalf of the Westmount Health Facility, Plaintiff, v. Estate of Joseph Garry, Jr., Jeffrey Garry, Michael Garry, as Trustee, the Garry Family Trust Dated November 13, 1997, Juanita Maswick, Joanne Ballini and Alexandra J. Garry, Defendants; 63093 DECISION AND ORDER This recusal motion stems from actions brought seeking payment for nursing home services rendered by plaintiff to Joseph Garry, Jr. (hereinafter decedent). The moving affidavit alleges “upon information and belief” that decedent was one of the two brothers who founded the Roaring Brook Resort and Conference Center (hereinafter the Resort) in the Town of Lake George, Warren County, many years ago; that defendant Jeffrey Garry is decedent’s son and “was employed in some capacity as a manager at the Resort for many years”; that defendants Juanita Maswick and Joanne Ballini are decedent’s daughters and the sisters of Jeffrey Garry; and that defendant Garry Family Trust dated November 13, 1997 “owns or recently owned a 45 percent stake in G & G Lands and Buildings. Ltd., “[a] company that owned the valuable land of the Resort — and owns or recently owned 15 shares of stock in Roaring Brook Ranch and Tennis Resort, Inc. — the company that operates the Resort.” Initially the Court observes that neither G&G Lands and Buildings. Ltd. nor the Resort are parties to these actions and, further, that these actions — commenced on April 7, 2010 and September 9, 2016, respectively — have endured extensive discovery and motion practice over the years, with this recusal motion now the most recent. Plaintiff’s counsel avers that “[a]t a conference in Chambers on November 1, 2017, Justice Robert J. Muller told counsel for the parties that his wife had worked at [the Resort] for many years[, and i]t thus appears that Justice Muller may have, or may have had, through his spouse, an interest in the corporations underlying the Resort and owned by the Garry family that should disqualify him from the adjudication of these actions pursuant to Judiciary Law §14.” In opposing the motion defense counsel’s submission characterizes “the allegation of ‘an interest’ held by Judge Muller’s wife in [the] Resort [as a] Q-Anon absurdity” and contends that it “smacks of judge shopping,” emphasizing that through discovery plaintiff had to have been aware of the ownership structure of the resort, the Garry Family Trusts and Garry family members. Defense counsel further notes that the conference in question took place over three years ago. At oral argument, the following colloquy took place which aptly describes the basis — or lack thereof — of the motion: “THE COURT: All right. Mr. Clements, I read your motion but I wanted oral argument on this thing. Let me just start by saying I made a comment to you many years ago whether [defense counsel] remembers it or not, and I said that my wife was employed for Roaring Brook. I didn’t say for many years, I said many years ago. But I also note that Roaring Brook is not a party to this litigation. So, I really want you to tell me on the record what is the basis for making this motion, particularly with what I just said to you. What else do you have to work with? “MR. CLEMENTS: Nothing, Your Honor.” After being advised that “many years” was actually many years ago — specifically for a brief period in 1976 when the undersigned’s spouse was 17 or 18 years old — counsel for plaintiff offered to withdraw the motion. This offer was declined. Considering the seriousness of counsel’s sworn averments in support of the relief sought and the passage of over forty months and unnecessary delays caused to this litigation it is incumbent upon the Court to address, dispose of, and lay to rest all claims of impropriety generated by this motion. Withdrawal of the motion would leave the claimed issues in abeyance and unresolved. On that foundation, in the absence of readily and easily availed accurate facts, counsel’s motion asserts that the Court “may have, or may have had, through his spouse, an interest in the corporations underlying the Resort and owned by the Garry family that should disqualify him from the adjudication of these actions pursuant to Judiciary Law §14, entitled “[d]isqualification of judge by reason of interest or consanquinity.” The motion then proceeds to rely upon 22 NYCRR §100.3 (E), which provides, in pertinent part: “(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) (i) the judge has a personal bias or prejudice concerning a party; or (ii) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;… (c) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding; (d) the judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding; (ii) is an officer, director or trustee of a party; (iii) has an interest that could be substantially affected by the proceeding.” “[W]hether a [j]udge should recuse himself [or herself], to avoid the appearance of impropriety, is a matter left to the personal conscience of the court” (SSAC, Inc. v. Infitec, Inc., 198 AD2d 903, 904 [1993] [internal quotation marks omitted]). This record and the presentation at oral argument does not support the reasons proffered by plaintiff’s counsel concerning the alleged appearance of impropriety and, neither alone or in any combination, supports any claims of judicial bias or impropriety that would warrant recusal (see Tripi v. Alabiso, 189 AD3d 2060, 2062 [2020]; Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 465, 466 [2006]; compare Concord Assoc., L.P. v. EPT Concord, LLC, 130 AD3d 1404, 1405-1406 [2015], lv denied 26 NY3d 912 [2015]). Indeed, “[a] judge has an obligation not to recuse himself or herself…unless he or she is satisfied that he or she is unable to serve with complete impartiality, in fact or appearance” (Silber v. Silber, 84 A.D.3d 931, 932 [2011] [internal quotation marks and citation omitted]). Pursuant to 22 NYCRR §130-1.1 (a) and (b), the court, “in its discretion,” may award costs — including attorney’s fees — as well as impose financial sanctions against an attorney or firm that engages in “frivolous conduct.” When determining whether the conduct undertaken was frivolous, the court must consider the circumstances under which the conduct took place and whether or not the conduct was continued when its lack of legal or factual basis was apparent or should have been apparent (see 22 NYCRR §130-1.1 [c]). Furthermore, “‘[t]rial judges should be accorded wide latitude to determine the appropriate sanctions for dilatory and improper attorney conduct and [are given deference] regarding sanctions determinations unless there is a clear abuse of discretion” (Matter of Kover, 134 AD3d 64, 74 [2015], quoting Pickens v. Castro, 55 AD3d 443, 444 [2008]). 22 NYCRR 130-1.1 (c) provides that conduct is frivolous if: “(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; “(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or “(3) it asserts material factual statements that are false.” “Conduct which violates any of [these] three subdivisions is grounds for the imposition of sanctions” (DeRosa v. Chase Manhattan Mtge. Corp., 15 AD3d 249, 250 [2005]). Thus, sanctions and costs have been imposed for insulting behavior to opposing counsel, baseless ad hominem attacks against the court and opposing party, and mischaracterization of the record (see Nachbaur v. American Tr. Ins. Co., 300 AD2d 74, 75 [2002], lv dismissed 99 NY2d 576 [2003], cert denied 538 US 987 [2003]). Here, the Court finds that the filing of the recusal motion constitutes frivolous conduct as defined under 22 NYCRR §130.1-1 (c) and is inclined to impose costs and/or financial sanctions upon counsel for plaintiff (see 22 NYCRR §130.1-1 [a], [b]). That being said, under 22 NYCRR §130-1.1 (d) an attorney must be provided “a reasonable opportunity to be heard” prior to the imposition of costs or sanctions. Counsel for plaintiff is therefore directed to submit a memorandum of law on the issues of (1) whether costs should be awarded and sanctions imposed under 22 NYCRR §130-1.1 (a) and (b); and (2) if costs are awarded and sanctions are imposed, the appropriate amount of said costs and sanctions. This memorandum of law shall be submitted within thirty (30) days of the date of this Decision and Order, with counsel for defendants then having fifteen (15) days from receipt of the memorandum of law to submit a reply. Therefore, having considered the Affidavit of Thomas G. Clements, Esq., sworn to December 9, 2020, submitted in support of the motion; Affidavit of Brendan F. Baynes, Esq., sworn to December 23, 2020, submitted in opposition to the motion; and Reply Affidavit of Thomas G. Clements, Esq., sworn to December 30, 2020, submitted in further support of the motion, and oral argument having been held on January 28, 2021 with Thomas G. Clements, Esq. appearing on behalf of plaintiff and Brendan F. Baynes, Esq. appearing on behalf of defendants, it is hereby ORDERED that plaintiff’s recusal motion is denied in its entirety, with the Court finding that the filing of such motion by plaintiff’s counsel constitutes frivolous conduct, as that term is defined in 22 NYCRR §130-1.1 (c); and it is further ORDERED that counsel for plaintiff shall submit a memorandum of law on the issues of (1) whether costs should be awarded and sanctions imposed under 22 NYCRR §130-1.1 (a) and (b); and (2) if costs are awarded and sanctions are imposed, the appropriate amount of said costs and sanctions, with this memorandum of law to be submitted within thirty (30) days of the date of this Decision and Order; and it is further ORDERED that counsel for defendants shall have fifteen (15) days from the date of receipt of the memorandum of law in which to submit a reply. The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated December 9, 2020 and the submissions enumerated above. Counsel for defendants is hereby directed to promptly obtain a copy of the filed Decision and Order for service with notice of entry upon plaintiff in accordance with CPLR 5513. Dated: March 15, 2021
