| Levi v Levi |
| 2007 NY Slip Op 09562 [46 AD3d 520] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Avraham Levi, Appellant, v Sigal Levi,Respondent. |
—[*1] Kliegerman & Joseph, LLP, New York, N.Y. (Michael P. Joseph of counsel), forrespondent.
In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of theSupreme Court, Kings County (Ambrosio, J.), dated November 28, 2005, which, upon a decisionof the same court dated September 21, 2005, made after a nonjury trial, inter alia, awarded thedefendant a 100% share of the marital residence.
Ordered that the judgment is affirmed, with costs.
Married in Israel in December 1985, the plaintiff and the defendant have five children in thislong-term marriage. Marital difficulties eventually ensued, prompting the plaintiff to commencethis action for a divorce and ancillary relief by summons and verified complaint dated October26, 2001. The parties originally appeared before a Justice of the Supreme Court, Kings County(hereinafter the former Justice). The action terminated abruptly following allegations that theplaintiff attempted to bribe the former Justice for a favorable outcome. Subsequently, the formerJustice and the plaintiff, among others, were arrested for their actions, and a mistrial wasdeclared.
At a criminal proceeding on June 21, 2004 the plaintiff admitted that between November 20,2002 and April 22, 2003, he conspired to bribe the former Justice in the pending divorce action,providing a $10,000 payment to influence a favorable outcome on his behalf.
Following a second trial, the Supreme Court, inter alia, equitably distributed the sole maritalasset, the marital residence, entirely to the defendant. The court based this distribution, in part, onthe egregious behavior of the plaintiff in attempting to bribe the former Justice to rule in hisfavor. We affirm.[*2]
The plaintiff's contention that the Justice who presidedover the second trial erred in failing to recuse himself is without merit. "Absent a legaldisqualification under Judiciary Law § 14, a trial judge is the sole arbiter of recusal and hisor her decision in that regard will not be lightly overturned [citations omitted]. 'Recusal, as amatter of due process, is required only where there exists a direct, personal, substantial orpecuniary interest in reaching a particular conclusion or where a clash in judicial roles is seen toexist' " (Matter of Khan v Dolly, 39AD3d 649, 650-651 [2007], quoting People v Alomar, 93 NY2d 239, 246 [1999]).The plaintiff did not establish any basis requiring recusal in the instant case.
With respect to the merits, Domestic Relations Law § 236 (B) (5) (d) provides thatmarital fault may be taken into consideration pursuant to the statute's catchall provision, whichallows consideration of "any other factor" which may be "just and proper" (O'Brien vO'Brien, 66 NY2d 576, 589 [1985]). "[T]he marital misconduct [must be] so egregious oruncivilized as to bespeak of a blatant disregard of the marital relationship—misconductthat 'shocks the conscience' of the court thereby compelling it to invoke its equitable power to dojustice between the parties" (Blickstein v Blickstein, 99 AD2d 287, 292 [1984]; seeHavell v Islam, 301 AD2d 339, 344 [2002]; McMahan v McMahan, 100 AD2d 826,826-827 [1984]).
The plaintiff contends on appeal that, because he was suffering from a mental disease ordefect, the Trial Justice erred in deeming his attempted bribery of the former Justice an egregiousact. This contention is unpreserved for appellate review because it was not raised before theSupreme Court (see Vingo vRosner, 29 AD3d 896 [2006]), and, in any event, the plaintiff's claim is without merit.The plaintiff relied upon the report of a forensic expert to assert that he lacked the mentalcapacity to comprehend the nature or consequences of his conduct. Although the forensic expertopined that the plaintiff suffered from personality disorders that would benefit from "some levelof treatment" because he appeared emotionally "stuck," the expert did not opine that the plaintifflacked legal responsibility for his acts by reason of a mental disease or defect.
Moreover, the Supreme Court properly exercised its discretion in finding that the plaintiff'sattempt to bribe the former Justice constituted egregious marital fault to be factored into theequitable distribution award in addition to other considerations (see Havell v Islam, 301AD2d at 344; Blickstein v Blickstein, 99 AD2d at 292).
The plaintiff's remaining contentions are without merit. Santucci, J.P., Krausman, Lifson andBalkin, JJ., concur.