Breytman v Schechter

[*1] Breytman v Schechter 2012 NY Slip Op 50315(U) Decided on February 27, 2012 Supreme Court, Kings County Schack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 27, 2012
Supreme Court, Kings County

Alexander Breytman, Plaintiff,

against

Donald Schechter and Donald Schechter, P.C., Defendants.



1719/09



Plaintiff

Alex Breytman, pro se

Defendant

Catalano Gallardo

Long Island, NY

Arthur M. Schack, J.

This decision and order will explain why I am recusing myself today from this action. However, this decision and order does not affect or impact upon plaintiff's instant motion, which pro se plaintiff ALEXANDER BREYTMAN (BREYTMAN) states is "to vacate unconstitutional non final uncle Scrooge laughable orders dated July 22, 2011 ordering me to pay $3,700 from $200.00 of food stamps and moving this case to Eastern District Federal Court for bankruptcy protection and Feb 8 2011 and June 18,2011 and stop wasting my and appellant time [sic]."

Plaintiff BREYTMAN commenced this action for alleged legal malpractice, breach of contract, fraud, intentional infliction of emotional distress and defamation committed against him by defendants DONALD SCHECHTER and DONALD SCHECHTER, P.C. (collectively "SCHECHTER"), stemming from SCHECHTER's representation of BREYTMAN in actions for malicious prosecution and false arrest against the City of New York and plaintiff's former landlord. In my prior February 8, 2011 decision and order, published at 30 Misc 3d 1219 (A), I granted defendants summary judgment and dismissed the instant action with prejudice.

Subsequently, plaintiff BREYTMAN made a motion for various forms of relief, which I [*2]deemed to be a motion to reargue my February 8, 2011 decision and order. In my July 22, 2011 decision and order, published at 32 Misc 3d 1220 (A), at * 1, I found this motion to be frivolous because it was "completely without merit in law and undertaken primarily to harass and maliciously injure defendants SCHECHTER and the Court" and "[a]fter giving plaintiff BREYTMAN a reasonable opportunity to be heard and reviewing all papers submitted and the oral argument transcript, the instant motion is denied. Costs and sanctions are imposed upon plaintiff BREYTMAN for frivolous conduct."

Despite denying the prior motion to reargue, and the entry by defendants of a judgment of dismissal, on June 3, 2011, plaintiff BREYTMAN filed, on December 2, 2011, with the Office of the Kings County Court, the new motion now before the Court. The instant motion appears on its face to be nothing more than another attempt to waste scarce judicial resources by rearguing my prior decisions and orders in this action. Further, the instant motion seeks various forms of relief against me based upon spurious information, containing numerous defamatory and baseless comments in plaintiff BREYTMAN's barely comprehensible stream of consciousness ranting.

Subsequent to the Clerk scheduling oral argument on this new motion for today, plaintiff BREYTMAN was arrested on January 19, 2012 by a Court Officer for allegedly committing numerous counts of felony criminal mischief against the motor vehicles of myself and many of my Kings County Supreme Court colleagues. As a complaining witness against BREYTMAN, I signed a supporting deposition for the Kings County District Attorney to present to the Grand Jury.

Therefore, to avoid the appearance of any impropriety on my part, I must recuse myself from this action, even though I know I would be fair and impartial as the Individual Assignment Judge in deciding the motion presently before the Court.

Judge Bellacosa, for a unanimous Court of Appeals (People v Moreno, 70 NY2d 403, 405 [1987]) instructed that "[a]bsent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal." The Court, in Schwartzberg v Kingsbridge Heights Care Center, Inc., 28 AD2d 465, 466 (2d Dept 2006), held that "[i]n the absence of a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and his or her decision is a matter of discretion and personal conscience (see People v Moreno, 70 NY2d 403, 405)." In Poli v Gara, 117 AD2d 786, 788-789 (2d Dept 1986), the Court stated that "[t]he question of whether a Judge should recuse himself to avoid an appearance of impropriety is a matter left to the personal conscience of the court (e.g., Matter of Johnson v. Hornblass, 93 AD2d 732 [1d Dept 1983]; Casterella v. Casterella, 65 AD2d 614 [2d Dept 1978])." (See People v Fischer, 143 AD2d 1036 [2d Dept 1988]; People v Gallagher, 158 AD2d 469 [2d Dept 1990]; Warm v State, 265 AD2d 546 [2d Dept 1999]; In re Jimmy H., 274 AD2d 430 [2d Dept 2000]; People ex rel. Smulczeski, ex rel. Smulczeski v Smulczeski, 18 AD3d 785 [2d Dept 2005]; Tornheim v Tornheim, 28 AD3d 534 [2d Dept 2006]; Montesdeoca v Montesdeoca, 38 AD3d 666 [2d Dept 2007]; Kupersmith v Winged Foot Gold Club, Inc., 38 AD3d 847 [2d Dept 2007]).

Conclusion

Accordingly, it is

ORDERED, that I recuse myself forthwith from the instant action; and it is further

ORDERED, that the instant motion is transferred to Justice Sylvia O. Hinds-Radix, Administrative Judge for Civil Matters, Second Judicial District. [*3]

This constitutes the Decision and Order of the Court.ENTER

__________________________

HON. ARTHUR M. SCHACK

J. S. C.