| Glatzer v Bear, Stearns & Co., Inc. |
| 2012 NY Slip Op 04080 [95 AD3d 707] |
| May 24, 2012 |
| Appellate Division, First Department |
| Bernard H. Glatzer, Appellant, v Bear, Stearns & Co., Inc.,et al., Respondents. |
—[*1] Fulbright & Jaworski L.L.P., New York (Mark Allen Robertson of counsel), forrespondents.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered on or about May 1, 2008,which denied plaintiff's recusal motion, unanimously affirmed, with costs.
Plaintiff filed the instant recusal motion after the court dismissed the complaint. Thus, thetrial court lacked the authority to grant the motion absent proof of actual prejudice or biasedactions, rather than the mere appearance of impropriety (see Rochester Community IndividualPractice Assn. v Excellus Health Plan, 305 AD2d 1007 [2003], lv dismissed 1 NY3d546 [2003]), and there is no basis for mandatory disqualification or recusal (see JudiciaryLaw § 14; 22 NYCRR 100.3 [E] [1]; People v Grasso, 49 AD3d 303 [2008]). The trial court'sgeneralized comments comparing judicial salaries to first year attorney salaries as recentlyreported in the news, coupled with an attendant joke that he might have to seek employment withdefendants' counsel's law firm, stand in stark contrast to the facts in Caperton v A.T. MasseyCoal Co. (556 US 868 [2009]), relied upon by plaintiff, in which the president and chiefexecutive officer of a corporation appearing as a defendant before the judge against whomrecusal was sought had contributed some $3 million to his election campaign and at issue was a$50 million judgment against the defendant corporation. Here, there is no basis to conclude thatactual bias or prejudice existed. No evidence was offered to show that the trial judge had anyrelationship with defendants' counsel outside of the courtroom, that the trial judge was seeking,or intended to seek employment with the law firm, or that the court was in anyway biased infavor of defendants.
Moreover, where, as here, a party inexplicably withholds an allegation of bias until after thecourt adversely rules against it, denial of the recusal motion is generally warranted and the courts'discretion in so ruling will not be disturbed (see e.g., Anonymous v Anonymous,222 AD2d 295 [1995]; Leventritt v Eckstein, 206 AD2d 313 [1994], lv dismissed inpart and denied in part 84 NY2d 987 [1994]). Plaintiff's claims of bias are undermined by hiscontinued participation in the court proceedings for nearly a year after the disputed commentswere made, without complaint. Furthermore, the dismissal of plaintiff's "amended" action wassoundly [*2]based upon a prior federal district Court decisionwhich this Court previously found disposed of plaintiff's fundamental arguments (see Glatzerv Enron Corp., 277 AD2d 161 [2000]). Concur—Gonzalez, P.J., Andrias, Saxe,DeGrasse and Román, JJ.