NEW YORK STATE URBAN DEVELOPMENT CO v. FALLSITE, LLC

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [495] CA 11-01286 PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ. IN THE MATTER OF THE APPLICATION OF PETITIONER/CONDEMNOR NEW YORK STATE URBAN DEVELOPMENT CORPORATION, DOING BUSINESS AS EMPIRE STATE DEVELOPMENT CORPORATION, PETITIONER-RESPONDENT, TO ACQUIRE IN FEE SIMPLE CERTAIN REAL PROPERTY CURRENTLY OWNED BY FALLSITE, LLC, AND KNOWN AS: 232 SIXTH STREET, CITY OF NIAGARA FALLS MEMORANDUM AND ORDER 700 RAINBOW BLVD., CITY OF NIAGARA FALLS 231 SIXTH STREET, CITY OF NIAGARA FALLS 626 RAINBOW BLVD., CITY OF NIAGARA FALLS 701 FALLS STREET, CITY OF NIAGARA FALLS SITUATED IN THE COUNTY OF NIAGARA, STATE OF NEW YORK AND HAVING, RESPECTIVELY; THE FOLLOWING TAX SECTIONS, BLOCKS, AND LOTS: 159.09-2-25.122 159.09-2-25.112 159.09-2-25.121 159.09-2-25.111 159.09-2-25.211 TOGETHER WITH ALL COMPENSABLE INTERESTS THEREIN CURRENTLY OWNED BY FALLSITE, LLC, FALLSVILLE SPLASH, LLC AND ANY OTHER CONDEMNEES WHO ARE CURRENTLY UNKNOWN. ------------------------------------------------ FALLSITE, LLC AND FALLSVILLE SPLASH, LLC, RESPONDENTS-APPELLANTS. JOHN P. BARTOLOMEI & ASSOCIATES, NIAGARA FALLS, D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR RESPONDENTS-APPELLANTS. HARRIS BEACH PLLC, PITTSFORD (PHILIP G. SPELLANE OF COUNSEL), FOR PETITIONER-RESPONDENT. Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January 24, 2011. The order, inter alia, denied respondents’ cross motion for a mistrial and recusal. -2- 495 CA 11-01286 It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this condemnation proceeding, respondents appeal from an order that, inter alia, denied their cross motion for a mistrial and recusal based upon Supreme Court’s alleged relationship with a partner at the law firm representing petitioner and comments made by the court in other proceedings concerning the viability of development in the Niagara Falls area. We affirm. Neither of the grounds raised in support of recusal invoke the court’s mandatory duty to recuse itself (see Judiciary Law § 14). Thus, recusal was a matter for the court’s discretion, and we perceive no abuse of that discretion (see Caplash v Rochester Oral & Maxillofacial Surgery Assoc., LLC, 63 AD3d 1683, 1686 ; Matter of Gutzmer v Santini, 60 AD3d 1295 , lv dismissed 12 NY3d 889 ). Entered: April 27, 2012 Frances E. Cafarell Clerk of the Court