| Daulat v Helms Bros., Inc. |
| 2008 NY Slip Op 10579 [57 AD3d 938] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Amar S. Daulat, Appellant, v Helms Bros., Inc.,Respondent. |
—[*1] Salamon, Gruber, Blaymore & Strenger, P.C., Roslyn Heights, N.Y. (Sanford Strenger ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals froman order of the Supreme Court, Queens County (Weiss, J.), dated October 16, 2007, whichdenied that branch of his motion which was denominated as one for leave to renew or reargueand to vacate a prior order dated May 25, 2007, but which was, in actuality, one for leave toreargue his opposition to the defendant's prior motion for summary judgment on thecounterclaim, which had been granted by an order dated May 25, 2007, and denied that branch ofhis motion which was for recusal.
Ordered that the appeal from so much of the order as denied that branch of the plaintiff'smotion which was denominated as one for leave to renew or reargue and to vacate the orderdated May 25, 2007, but which was, in actuality, one for leave to reargue his opposition to thedefendant's prior motion for summary judgment on the counterclaim is dismissed; and it isfurther,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
That branch of the plaintiff's motion which was denominated as one for leave to renew orreargue his opposition to the defendant's prior motion for summary judgment on the counterclaimand to vacate a prior order dated May 25, 2007, granting the defendant's motion for summaryjudgment on the counterclaim was, as the Supreme Court found, actually one for leave to rearguehis opposition to the defendant's prior motion, the denial of which is not appealable (seeTrahan v [*2]Galea, 48 AD3d 791, 792 [2008]; Eight InOne Pet Prods. v Janco Press, Inc., 37 AD3d 402 [2007]).
That branch of the plaintiff's motion which was for recusal failed to set forth proof whichrequired the Supreme Court Justice hearing this motion to recuse himself. "Absent a legaldisqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal"(People v Moreno, 70 NY2d 403, 405 [1987]). The plaintiff failed to set forth any proofof bias or prejudice to warrant the conclusion that the Justice's failure to recuse himself was animprovident exercise of discretion (see Modica v Modica, 15 AD3d 635, 636 [2005];Matter of Firestone v Siems, 272 AD2d 544, 545 [2000]; Anjam v Anjam, 191AD2d 531, 532-533 [1993]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Dillon, Carni andLeventhal, JJ., concur.