| Matter of Kyle v Lebovits |
| 2009 NY Slip Op 00247 [58 AD3d 521] |
| January 20, 2009 |
| Appellate Division, First Department |
| In the Matter of William Kyle et al., Appellants, v GeraldLebovits, Respondent, et al., Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York (Richard Dearing of counsel), for GeraldLebovits, respondent.
Order, Supreme Court, New York County (Herman Cahn, J.), entered November 1, 2007,insofar as it denied the petition and dismissed the proceeding brought pursuant to CPLR article78 seeking a writ in the nature of mandamus directing respondent judge to disqualify himself,nunc pro tunc to June 4, 2007, from all matters relative to two pending nonpayment proceedings,unanimously affirmed; appeal from the part of the order that imposed sanctions in the amount of$1,000 upon nonparty attorney Robin H. Kyle for engaging in frivolous conduct, unanimouslydismissed; all with costs.
The record does not support a finding that Judge Lebovits was "interested" in the proceedingand thus required to recuse himself pursuant to Judiciary Law § 14. Absent a legaldisqualification under Judiciary Law § 14, petitioners had no clear right to the remedy ofmandamus (see Matter of AliziaMcK., 25 AD3d 429 [2006]). Moreover, they had and have other adequate remedies atlaw by which to seek the retroactive disqualification of the judge (see Matter of Herskowitz vTompkins, 184 AD2d 402, 402-403 [1992], appeal dismissed 80 NY2d 1023[1992]).
The appeal from the part of the order that imposed sanctions against nonparty attorney Kylemust be dismissed because Kyle did not file an appeal from the order within the 30-day periodestablished by CPLR 5513 (see Steinhardt Group v Citicorp, 303 AD2d 326 [2003],lv denied 100 NY2d 506 [2003]), and petitioners are not aggrieved by that part of theorder (see Scopelliti v Town of New Castle, 92 NY2d 944 [1998]). Were we to considerthe issue, we would perceive no basis for disturbing the court's exercise of discretion insanctioning Kyle.
We have considered petitioners' remaining arguments and find them unavailing.
Motion seeking leave for judicial notice denied.
Concur—Mazzarelli, J.P., Friedman, Buckley, Acosta and Freedman, JJ. [See17 Misc 3d 1124(A), 2007 NY Slip Op 52132(U).]