A decade long real estate litigation which eventually ends in a legal malpractice case with sanction hearings. This particular decision is about whether the judge who presided over the 10 year long real estate case should then have recused himself in the subsequent proceedings.
If Fulton Mkt. Retail Fish Inc. v Todtman, Nachamie, Spizz & Johns, P.C. 2018 NY Slip Op 01038 Decided on February 13, 2018 Appellate Division, First Department teaches us anything, it is that legal malpractice cases ratchet up the stakes and the atmosphere, and can lead to strong emotional responses from bench and bar.
“The court acted within its discretion in denying plaintiffs’ motion for leave to renew their recusal motion (see People v Moreno, 70 NY2d 403, 405 ; People v Glynn, 21 NY3d 614, 618-619 ; Mehulic v New York Downtown Hosp., 140 AD3d 417 [1st Dept 2016]; CPLR 2221[e]). The new facts arising from the court’s conduct at three hearings that post-date the filing of the prior recusal motion would not change the prior determination (CPLR 2221[e], ). No bias is demonstrated by the court’s comments upon learning of the grounds for the recusal motion and its conduct at oral argument on that motion and at the sanctions hearing, either standing alone or in combination with credibility rulings in the landlord-tenant litigation that gave rise to the instant legal malpractice action and that were cited in the prior recusal motion. The court was at times annoyed by plaintiffs’ counsel’s disrespectful attitude and by the grounds raised in the recusal motion, which plaintiffs never proved or adequately investigated. However, the record does not demonstrate that the court was so vexed that it could not be impartial (22 NYCRR 100.3[E]; see Liteky v United States, 510 US 540, 555-556 ; Hass & Gottlieb v Sook Hi Lee, 55 AD3d 433, 434 [1st Dept 2008]; People v A.S. Goldmen, Inc., 9 AD3d 283, 285 [1st Dept 2004], lv denied 3 NY3d 703 ). The court also acted within its discretion in ordering a sanctions hearing to ascertain whether the recusal motion was frivolous (see 22 NYCRR 130-1.1[a], [c]; see also 22 NYCRR 130-1.1[a][b]).
Plaintiffs’ claims are undermined by the fact that, while they argue that the court made biased rulings in the underlying landlord-tenant litigation, they never moved for recusal in that lawsuit, which lasted over a decade (see Glatzer v Bear, Stearns & Co., Inc., 95 AD3d 707 [1st Dept 2012]). Even after the same justice was assigned to the instant action, plaintiffs did not move for recusal until 10 months after the case commenced, and then only after the court, at oral argument on a motion to dismiss, questioned the viability of plaintiffs’ legal malpractice claim on collateral estoppel grounds.”