New York City Hous. Auth. v Tutuianu

[*1] New York City Hous. Auth. v Tutuianu 2010 NY Slip Op 51337(U) [28 Misc 3d 133(A)] Decided on July 22, 2010 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 22, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2009-1040 Q C.

New York City Housing Authority MANAGED BY POMONOK HOUSES, Respondent,

against

Mihail Tutuianu, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Michael J. Pinckney, J.), entered April 9, 2008. The order denied tenant's motion for the disqualification of Judge Pinckney in a nonpayment summary proceeding.

ORDERED that the order is affirmed without costs.

In this nonpayment proceeding commenced in September 2006, tenant interposed an answer which, among other things, asserted counterclaims alleging that certain repairs were never made and that he was being harassed. In September 2007, landlord discontinued the proceeding based upon its inability to establish a prima facie case at that time, and the Civil Court adjourned the matter for an abatement hearing. In October 2007, landlord commenced a new nonpayment proceeding against tenant. In March 2008, it having been determined that tenant had not sought an abatement in the instant proceeding, i.e., the proceeding commenced in 2006, the court severed tenant's counterclaims. Tenant thereafter moved to, among other things, disqualify Judge Pinckney, the judge who had most recently presided over the 2006 proceeding, which motion was denied by order dated April 9, 2008.

We note initially that although tenant, in his appellate brief, states that he is appealing from multiple orders, his notice of appeal, filed on April 25, 2008, is limited to the order of April 9, 2008, which denied his motion to disqualify Judge Pinckney in the instant proceeding.

In the absence of a ground for disqualification under Judiciary Law § 14, which requires disqualification of a judge by reason of interest or consanguinity, the decision on a recusal motion which appears to be based upon alleged bias or prejudice is generally a matter of the court's personal conscience or discretion (see Chang v SDI Intl. Inc., 15 AD3d 520 [2005]). Tenant has not alleged any grounds for statutory disqualification, nor has he set forth any credible [*2]proof of bias or prejudice to warrant the conclusion that Judge Pinckney's failure to recuse himself in the instant case was an improvident exercise of discretion (see Daulat v Helms Bros., Inc., 57 AD3d 938 [2008]; Matter of Greenfield, 53 AD3d 488 [2008]). "[B]ias or prejudice which can be urged against a judge must be based upon something other than rulings in the case" (Berger v United States, 255 US 22, 31 [1921]). Accordingly, for the foregoing reasons, the order is affirmed.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: July 22, 2010