George Eagan Ginther v Mary O'Grady Ginther

Ginther v Ginther 2006 NY Slip Op 04586 [30 AD3d 1031] June 9, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 23, 2006

George Eagan Ginther, Appellant, v Mary O'Grady Ginther, Defendant, and Vincent J. Sorrentino, Esq., et al., Respondents. (Appeal No. 1.)

—[*1]Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered January 18, 2005. The order denied plaintiff's motion for recusal.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: We conclude that Supreme Court did not abuse its discretion in denying plaintiff's motion for recusal in appeal No. 1 (see Matter of Bryan v Singer, 234 AD2d 631, 634 [1996]). The court also properly granted defendants' cross motions seeking summary judgment dismissing the complaint in appeal No. 2. Defendants met their initial burden by establishing that the claims have no merit (see CPLR 3212 [b]) and, "because no facts establishing [the claims] have . . . been alleged or proved, plaintiff has failed to demonstrate the existence of a triable issue of fact" (Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 279 [1978]). Further, under the circumstances of this case, the court properly exercised its discretion in ordering that plaintiff may not commence any "further or future proceedings, actions or litigation" in connection with the matrimonial action "without the prior approval" of the court (see Matter of Pignataro v Davis, 8 AD3d 487, 489 [2004]). Finally, by the order in appeal No. 3 the court granted plaintiff the relief he sought in his motion for an order protecting certain documents from disclosure. Thus, plaintiff is not aggrieved by the order in appeal No. 3 (see CPLR 5511), and the appeal from that order is dismissed (see T.D. v New York State Off. of Mental Health, 91 NY2d 860, 862 [1997]; Weichert v Shea, 186 AD2d 992 [1992]). Present—Scudder, J.P., Gorski, Martoche, Green and Hayes, JJ.