| Matter of Albany County Dept. of Social Servs. v Rossi |
| 2009 NY Slip Op 03644 [62 AD3d 1049] |
| May 7, 2009 |
| Appellate Division, Third Department |
| In the Matter of Albany County Department of Social Services,Respondent, v Josephine Rossi, Appellant. |
—[*1] D. Steve Rahmas, Albany County Department of Social Services, Albany, forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (McCarthy, J.), entered October 12,2006 in Albany County, which, among other things, in a proceeding pursuant to Social ServicesLaw § 473-c, denied respondent's motion to stay the proceeding.
Alleging that respondent was believed to be in need of adult protective services, petitionersought an order to gain access to respondent's home pursuant to Social Services Law §473-c. Supreme Court (Tomlinson, J.) granted the relief, but subsequently issued a stay of theorder. When negotiations between the parties failed, Supreme Court (McCarthy, J.) reinstated theorder, which petitioner executed by entering respondent's home accompanied by a police officerand representatives of other local agencies. Respondent was advised by an Albany CountyDepartment of Health representative that her home was unfit for human habitation and that sheshould refrain from living there until the conditions were abated. Petitioner then conducted anassessment of respondent, determined that she was in need of services as described in SocialServices Law § 473 (1) (d) and offered her assistance in finding temporary shelter, whichshe refused. Respondent subsequently moved for, among other things, dismissal of petitioner'sSocial Services Law § 473-c application, a stay of the court's order and Supreme Court'srecusal in the matter. Supreme Court denied all such relief, prompting this appeal.[*2]
We affirm. There is no merit to respondent's contentionthat the reinstated order should be vacated because she was neither given notice of theapplication for that order nor served with the order prior to its execution. A social servicesofficial may apply for a court order of access when there is reasonable cause to believe that aperson may be in need of adult protective services and the official is refused access to thatperson (see Social Services Law § 473-c [1]). "The standard for proof andprocedure for such an authorization shall be the same as for a search warrant under the criminalprocedure law" (Social Services Law § 473-c [4]). Neither the Social Services Law nor thesearch warrant provisions of the Criminal Procedure Law require notice to, or any form ofservice upon, the person who is the subject of what is routinely an ex parte application(see Social Services Law § 473-c; CPL 690.35; see also People v Bilsky,95 NY2d 172, 176 [2000]). Furthermore, the order of access need only be served upon therespondent at the time of its execution (see CPL 690.50). Accordingly, Supreme Courtproperly denied respondent's motion to vacate the underlying order on these grounds.
Nor was recusal required. Absent a legal disqualification under Judiciary Law § 14,which was not present here, "a trial judge is the sole arbiter of recusal and his or her decision inthat regard will not be overturned absent an abuse of discretion" (Matter of Stampfler vSnow, 290 AD2d 595, 596 [2002]; see Kampfer v Rase, 56 AD3d 926, 926 [2008], lv denied11 NY3d 716 [2009]). Additionally, "[r]ecusal, as a matter of due process, is required onlywhere there exists a direct, personal, substantial or pecuniary interest in reaching a particularconclusion, or where a clash in judicial roles is seen to exist" (People v Alomar, 93NY2d 239, 246 [1999] [citation omitted]; see Kampfer v Rase, 56 AD3d at 926). Asrespondent has made no such showing, Supreme Court's decision not to recuse was proper.
Finally, to the extent that respondent argues that Supreme Court failed to consider certainarguments contained in the reply affidavits and letters submitted in connection with her motions,we need only note that these submissions were an improper vehicle for raising new arguments tothe court (see Potter v Blue Shield of Northeastern N.Y., 216 AD2d 773, 775 [1995];Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]). Respondent's remainingcontentions are either unpreserved or have been reviewed and found to be lacking in merit.
Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.