Matter of Rosemarie Panio v Carolee Sunderland

Matter of Panio v Sunderland 2004 NY Slip Op 08698 [12 AD3d 608] November 22, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

In the Matter of Rosemarie Panio, Appellant,
v
Carolee Sunderland et al., Respondents, and Andrea Stewart-Cousins, Respondent. (Proceeding No. 1.) In the Matter of Andrea Stewart-Cousins, Petitioner, v Carolee Sunderland et al., Respondents. (Proceeding No. 2.)

—[*1]In two related proceedings pursuant to Election Law § 16-102, inter alia, to determine the validity of, among other things, absentee and provisional ballots cast in the general election held on November 2, 2004, within the 35th Senatorial District, the petitioner in proceeding No. 1 appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), dated November 18, 2004, which denied the joint oral application made by her and Nicholas Spano, a respondent in proceeding No. 2, to recuse Justice Nicolai from presiding over the proceedings and to recuse Justice Nicolai, in his capacity as Administrative Judge, from reassigning the matters to another Justice.

Motions by the appellant (1), inter alia, for leave to appeal to this Court from the order dated November 18, 2004, and (2), inter alia, for a stay of the proceedings pending hearing and determination of the appeal.

Ordered that the branch of the first motion which is for leave to appeal is granted (see CPLR 5701 [c]), and that motion is otherwise denied; and it is further,

Ordered that the motion, inter alia, for a stay of the proceedings pending [*2]hearing and determination of the appeal is denied, and the temporary restraining order contained in the order to show cause dated November 19, 2004, is vacated; and it is further,

Ordered that the order is reversed, without costs or disbursements, the oral application to recuse Justice Nicolai from presiding over the proceedings and to recuse Justice Nicolai, in his capacity as Administrative Judge, from reassigning the matters to another Justice is granted, and Jan H. Plumadore, the Deputy Chief Administrative Judge for Courts outside the City of New York, as designee of the Chief Administrative Judge, shall reassign these matters to another Justice of the Supreme Court.

Under the circumstances of this case, recusal of Justice Nicolai is warranted. Smith, J.P., Luciano, Crane and Rivera, JJ., concur.