| Matter of Adams v Bracci |
| 2012 NY Slip Op 07922 [100 AD3d 1214] |
| November 21, 2012 |
| Appellate Division, Third Department |
| In the Matter of Ryan Adams, Petitioner, v Alecia Bracci,Appellant. (And Nine Other Related Proceedings.) |
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Stein, J. Appeals (1) from an order of the Family Court of Delaware County (Becker, J.),entered April 29, 2011, which, in 10 proceedings pursuant to Family Ct Act article 6, amongother things, denied respondent's motion to vacate prior orders of custody, and (2) from an orderof said court, entered July 1, 2011, which, sua sponte, imposed sanctions upon respondent andher attorney.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of adaughter (born in 2004). The daughter has been the subject of a number of custody proceedingspresided over by Delaware County Family Court Judge Carl F. Becker. In March 2011, themother moved to vacate any and all orders of Judge Becker, based on her allegation that he wasnot qualified to serve as a judicial officer due to the lack of a certificate of election on file withthe Delaware County Clerk's office. The motion also sought removal of the appointed attorneyfor the child on the grounds that he was not appointed by a duly authorized judicial officer andthat he failed to provide effective assistance of counsel to the child. The father answered themotion and requested that Family Court sanction the mother and her attorney for filing afrivolous motion.
Family Court thereafter denied the mother's motion in its entirety and ordered both themother and her attorney to show cause why sanctions and costs should not be imposed on them.After considering the affirmation of the mother's attorney in opposition to the imposition ofsanctions, Family Court determined that the conduct of the mother and her attorney was frivolous[*2]and, as relevant here, conditionally ordered the mother to paysanctions in the amount of $250.[FN1]The mother now appeals from both the order denying her motion to vacate and the orderimposing sanctions.
The mother's argument that Family Court erred in denying her motion to vacate isunpersuasive. To be sure, a prior order may be vacated based upon, among other things, lack ofjurisdiction to render the order (see CPLR 5015 [a] [4]). Here, however, the mother'smotion to vacate all prior custody orders issued by Judge Becker was premised on the lack of acertificate of his election being on file (see County Law § 400 [5]). Even if therewas an irregularity in Judge Becker's election filings, his subsequent orders and judgments arenonetheless valid and are immune from any collateral attack (see Public Officers Law§ 15; Matter of Gilmartin v TaxAppeals Trib., 31 AD3d 1008, 1010 [2006]), and his appointment of the attorney for thechild is similarly protected (see People v Costa, 186 AD2d 299, 299 [1992], lvdenied 81 NY2d 761 [1992]). Accordingly, Family Court's denial of the mother's motion onthis ground was a sound exercise of its discretion (see Matter of Monaco v Armer, 93 AD3d 1089, 1090 [2012], lvdenied 19 NY3d 807 [2012]).[FN2]
Contrary to the mother's contention, Judge Becker was not required to recuse himself fromdetermining the motion to vacate. "Absent a legal disqualification under Judiciary Law §14, which is not at issue here, a . . . judge is the sole arbiter of recusal and his or herdecision, which lies within the personal conscience of the court, will not be disturbed absent anabuse of discretion" (Gonzalez v L'OrealUSA, Inc., 92 AD3d 1158, 1159 [2012], lv dismissed 19 NY3d 874 [2012][internal quotation marks and citations omitted]; see Matter of Albany County Dept. of Social Servs. v Rossi, 62 AD3d1049, 1050 [2009]). We discern no basis in the record to conclude that such an abuse ofdiscretion occurred here (see Maki vBassett Healthcare, 85 AD3d 1366, 1370 [2011], appeal dismissed 17 NY3d 855[2011], lv dismissed and denied 18 NY3d 870 [2012]). The mother's argument that JudgeBecker is biased against her and her attorney is wholly unsubstantiated (see People v Shultis, 61 AD3d1116, 1117 [2009], lv denied 12 NY3d 929 [2009]). Additionally, inasmuch as thedenial of the mother's motion to vacate was based on Public Officers Law § 15, JudgeBecker's statements regarding his election were irrelevant and did not make him an unswornwitness in this proceeding (see Oakes vMuka, 56 AD3d 1057, 1059 [2008]).[*3]
While the mother's appeal from the July 1, 2011 order hasarguably been rendered moot[FN3](see Matter of Freeman v State Univ. ofN.Y. at Potsdam, 83 AD3d 1243, 1243 [2011]), it lacks merit in any event. Contrary tothe mother's contentions, Family Court's imposition of sanctions satisfied the proceduralrequirements of 22 NYCRR 130-1.2 and properly identified her sanctionable conduct as "fil[ing]a motion to disqualify the court on grounds that [were] completely without basis in law and[could not] be supported by a reasonable argument for an extension, modification or reversal ofexisting law" (see 22 NYCRR 130-1.1). In addition, Family Court previously noted the"unremitting and vexacious course of litigation and conduct against [the father]." Under thesecircumstances, we conclude that Family Court's decision to conditionally sanction the motherwas a proper exercise of its discretion (see Yankee Lake Preserv. Assn., Inc. v Stein, 68 AD3d 1603, 1605[2009], lv denied 15 NY3d 706 [2010]).
The mother's remaining contentions have been examined and are either academic or withoutmerit.
Mercure, J.P., Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that the orders areaffirmed, without costs.
Footnote 1: Family Court stayed thepayment of the sanctions by the mother for a period of six months and provided that suchsanctions would be vacated if no further frivolous motions were filed by her within that time.Although Family Court also imposed sanctions upon the mother's attorney, they are not thesubject of this appeal.
Footnote 2: Additionally, inasmuch as themother's moving papers did not set forth any specific factual allegations to support her argumentthat the attorney for the child failed to provide the child with the effective assistance of counsel,such argument must be rejected.
Footnote 3: It has come to our attention that,pursuant to an order dated September 20, 2012, the sanctions previously imposed on the motherwere vacated because no further frivolous motions were filed within the relevant six-monthperiod.