| Gonzalez v L'Oreal USA, Inc. |
| 2012 NY Slip Op 01391 [92 AD3d 1158] |
| February 23, 2012 |
| Appellate Division, Third Department |
| Peter Gonzalez et al., Appellants, v L'Oreal Usa, Inc.,Respondent. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (Michael J. Murphy ofcounsel), for respondent.
Egan Jr., J. Appeals (1) from an order of the Supreme Court (O'Connor, J.), entered August5, 2010 in Schoharie County, which, among other things, denied plaintiffs' motion for a changeof venue, and (2) from an order of said court, entered November 15, 2010 in Schoharie County,which, among other things, denied plaintiffs' motion to disqualify the assigned Acting SupremeCourt Justice.
In December 2006, plaintiffs commenced this products liability action in SchoharieCounty—where they resided—seeking to recover for injuries allegedly sustained byplaintiff Francesca Gonzalez while coloring her hair utilizing a product purportedlymanufactured by defendant. In October 2008, Supreme Court (Devine, J.) ordered plaintiffs toaccept service of defendant's motion to dismiss the complaint and, in February 2009, SupremeCourt partially granted that motion, leaving only plaintiffs' breach of warranty claim intact.Plaintiffs did not appeal from either of those orders. Justice Devine subsequently recused himselfin August 2009, and the matter eventually was reassigned to Supreme Court (O'Connor, J.) inFebruary 2010.
In the interim, plaintiffs brought several motions seeking, insofar as is relevant to theseappeals, disqualification of Justice Devine, vacatur of the October 2008 and February 2009orders and a change of venue from Schoharie County to Rensselaer County. Defendant, in turn,cross-moved to dismiss plaintiffs' complaint based upon their willful failure to comply with [*2]outstanding discovery demands. By order entered August 5, 2010,Supreme Court (O'Connor, J.) denied plaintiffs' numerous motions and conditionally granteddefendant's cross motion to dismiss the complaint unless plaintiffs complied with the discoverydemands within 30 days.[FN1]Plaintiffs thereafter moved to disqualify Justice O'Connor and, by order entered November 15,2010, their motion was denied. These appeals by plaintiffs ensued.[FN2]
We affirm. To the extent that plaintiffs' various recusal/disqualification motions are properlybefore this Court, we find them to be lacking in merit. "Absent a legal disqualification underJudiciary Law § 14, which is not at issue here, a . . . judge is the sole arbiterof recusal and his or her decision, which lies within the personal conscience of the court, will notbe disturbed absent an abuse of discretion" (Kampfer v Rase, 56 AD3d 926, 926 [2008], lv denied 11NY3d 716 [2009] [internal quotation marks and citations omitted]; see Mokay v Mokay, 67 AD3d1210, 1213 [2009]). We perceive no abuse of that discretion here. Further, "[r]ecusal, 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" (People v Alomar, 93 NY2d 239, 246 [1999] [citation omitted]; accord Matter of Albany County Dept. ofSocial Servs. v Rossi, 62 AD3d 1049, 1050 [2009]; Kampfer v Rase, 56 AD3dat 926). Again, no such showing has been made here. Notably, the fact that a judge issues aruling that is not to a party's liking does not demonstrate either bias or misconduct (see generally Oakes v Muka, 56 AD3d1057, 1059 [2008]).
Plaintiff's motion for a change of venue also was properly denied, as plaintiffs failed toestablish a "strong possibility" that an impartial trial cannot be had in Schoharie County(Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666 [1994]; accord Blaine v International Bus. Machs.Corp., 91 AD3d 1175, 1175 [2012]). "[M]ere belief, suspicion or feeling are insufficientgrounds to grant a motion to change venue" (Cohen v Bernstein, 9 AD3d 573, 574 [2004]).
Finally, to the extent that plaintiffs seek to vacate the October 2008 and February 2009 ordersof Supreme Court (Devine, J.), plaintiffs—as noted previously—did not appeal fromeither of these orders, and it is well settled that "a motion to vacate should not be utilized as ameans by which to raise an issue of law that could have been pursued in the course of a timelyperfected appeal" (KLCR Land Corp. vNew York State Elec. & Gas Corp., 15 AD3d 719, 720 [2005]; accord Matter of Suzanne v Suzanne,69 AD3d 1011, 1012 [2010]). As for plaintiffs' related motions to renew and/or reargue,even assuming that such motions were made in a timely fashion, no appeal lies from the denial ofa motion to reargue (see Matter ofBiasutto v Biasutto, 75 AD3d 671, 672 [2010]), and plaintiffs failed to satisfy thestandard for renewal as they did not point to "any new facts or change in the law that wouldrequire a different determination" (Marquis v Washington, 85 AD3d 1338, 1338 [2011]; seeCPLR 2221 [e] [2]). Plaintiffs' remaining arguments, to the extent that they are properly beforeus, have been examined and [*3]found to be lacking in merit.
Lahtinen, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote 1: Defendant acknowledges in itsbrief that plaintiffs subsequently served timely responses to the then outstanding discoverydemands.
Footnote 2: Plaintiffs also subsequently (andunsuccessfully) sought to disqualify certain members of this Court from entertaining theirappeals.