| Oakes v Muka |
| 2008 NY Slip Op 09302 [56 AD3d 1057] |
| November 26, 2008 |
| Appellate Division, Third Department |
| Natalia Cokinos Oakes, Individually and as Successor Trustee ofthe Herbert C. Oakes Living Trust, as Assignee of Herbert C. Oakes Jr. and Bailie V. Oakes, andGuardian of Leopold V. Oakes, an Infant, Respondent, v Betty O. Muka,Appellant. |
—[*1] Holmberg, Galbraith & Van Houten, Ithaca (Anna K. Holmberg of counsel), forrespondent.
Peters, J.P. Appeals (1) from an order of the Supreme Court (Sherman, J.), entered April 16,2007 in Tompkins County, which, among other things, granted plaintiff's motion to dismissdefendant's counterclaim, and (2) from an order of said court (Garry, J.), entered October 1, 2007in Tompkins County, which denied defendant's motion to vacate a prior order of the court.
The underlying facts of this case are set forth in our prior decision in this matter (31 AD3d834 [2006]). Briefly, plaintiff commenced this action seeking, among other things, a declarationthat defendant used fraud, duress and undue influence upon Herbert C. Oakes to make substantialchanges to his will and trust. Supreme Court denied defendant's motion to dismiss the complaintand for recusal, and this Court affirmed (id.).
During the pendency of those motions, defendant filed an answer that included a [*2]counterclaim alleging that plaintiff violated Judiciary Law §487 by engaging in deceit, collusion and conspiracy with, among others, Justice Sherman, thejudge presiding over the action. Plaintiff moved to dismiss the counterclaim and, prior toSupreme Court ruling on the motion, defendant served judicial subpoenas on Justice Shermanand plaintiff's attorney directing them to appear as witnesses at the parties' trial. Supreme Court(Sherman, J.) granted plaintiff's motion to dismiss defendant's counterclaim and quashed thesubpoenas. Additionally, Justice Sherman recused himself from presiding over the remainder ofthe action, although specifically noting that his decision to do so had nothing to do withdefendant's allegations of misconduct. Subsequently, defendant moved to vacate Supreme Court'sorder, arguing, among other things, that Justice Sherman lacked jurisdiction to entertainplaintiff's motion because he was statutorily disqualified from presiding over the case. Uponreview, Supreme Court (Garry, J.) denied the motion. Defendant now appeals both the ordergranting plaintiff's motion to dismiss her counterclaim and the subsequent denial of her motion tovacate that order.
We begin by addressing defendant's challenges to the dismissal of her counterclaim.Procedurally, defendant contends that Supreme Court (Sherman, J.) erred in entertainingplaintiff's motion to dismiss the counterclaim because a note of issue had already been filed andplaintiff was in default on the counterclaim due to her failure to file and serve a timely reply. Wedisagree. As plaintiff's motion, which sought relief under CPLR 3211 (a) (7) and/or 3212, wasfiled 20 days after the filing of the note of issue, it was timely under both CPLR 3211(see CPLR 3211 [e]) and the local rule enacted by the Sixth Judicial District providingfor summary judgment motions within 60 days of the filing of the note of issue (seeCPLR 3212 [a]). Further, we find no support for defendant's assertion that plaintiff was in defaulton the counterclaim.
Nor did Supreme Court err in dismissing defendant's counterclaim. As relevant here,Judiciary Law § 487 provides that treble damages may be sought against "[a]n attorney orcounselor who . . . [i]s guilty of any deceit or collusion, or consents to any deceit orcollusion, with intent to deceive the court or any party" (Judiciary Law § 487 [1]). Thisprovision, however, applies to an attorney acting in his or her capacity as an attorney, not to aparty who is represented by counsel and who, incidentally, is an attorney (see People vCanale, 240 AD2d 839, 841 [1997]). Here, plaintiff, a licensed attorney in Texas, has beenrepresented by counsel at all stages of this litigation and has not acted in her capacity as anattorney.
Turning to the motion to vacate the prior order, defendant argues that Justice Sherman lackedjurisdiction to entertain plaintiff's motion to dismiss because he was personally interested in theoutcome of the claim (see CPLR 5015 [a] [4]). Specifically, defendant claims thatbecause Justice Sherman was named, among other Justices of the Supreme Court, in hercounterclaim alleging collusion and conspiracy and had been served with a subpoena to testify atthe trial in this action, he had an interest in the action and was therefore barred by Judiciary Law§ 14 from ruling on the motion.
Judiciary Law § 14 provides, in pertinent part, that "[a] judge shall not sit as such in, ortake any part in the decision of, an action, claim, matter, motion or proceeding . . .in which he [or she] is interested." The mere service of a witness subpoena, however, does not inand of itself disqualify a judge from continuing to preside over the action. While it is true that ajudge should err on the side of disqualification where he or she may be a material witness in amatter, a claim "that the [j]udge is a material witness must be made in good faith and must bebased on fact" (People v Rodriquez, 14 AD2d 917, 918 [1961]). Here, defendantexplained that she intended to call Justice Sherman as a witness for the purpose of identifying aprior order in a [*3]related case and the complaint in this action,all in an effort to demonstrate that plaintiff was "lying." Since a court is empowered to takejudicial notice of its own records as well as those of the same court in another action (seeMatter of Ordway, 196 NY 95, 97 [1909]; Chateau Rive Corp. v Enclave Dev. Assoc., 22 AD3d 445, 446[2005]; Matter of Bracken v Axelrod, 93 AD2d 913, 914 [1983], lv denied 59NY2d 606 [1983]), Justice Sherman cannot be considered a material witness for the merepurpose of testifying to the contents of court documents.
Further, Justice Sherman was not disqualified from ruling on the motion by virtue of theunsubstantiated and baseless allegations in defendant's counterclaim that he participated in aconspiracy and collusion with plaintiff's attorney. It has been defendant's tendency to sue, attack,or call for the removal of any judge who does not render a decision to her liking (see e.g.People v Muka, 72 AD2d 649, 650 [1979]; Muka v New York State Bar Assn., 120Misc 2d 897, 899 [Sup Ct, Tompkins County 1983]) and, as in those cases, there is absolutely nosupport in the record for defendant's allegations of misconduct. Moreover, "[a] judge cannot bedisqualified merely because a litigant sues or threatens to sue him or her. We cannotencourage such an easy method of disqualification" (Matter of New York State Assn. ofCriminal Defense Lawyers v Kaye, 95 NY2d 556, 561 [2000] [citation and internal quotationmarks omitted]; see People v Johnson, 115 AD2d 794, 794-795 [1985]).
To the extent that defendant challenges Supreme Court's denial of her motion to dismiss thecomplaint and its interpretation of the trust, this Court has already affirmed those determinations(31 AD3d 834 [2006], supra). Consequently, the law of the case doctrine precludesrelitigation of those very issues (see Bennett v Nardone, 298 AD2d 790, 790-791 [2002],lv dismissed 99 NY2d 579 [2003]; see generally People v Evans, 94 NY2d 499,502-504 [2000]).
Defendant's remaining contentions have been reviewed and found to be without merit.
Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the orders are affirmed,without costs.