Ulrich v. Estate of Zdunkiewicz

Appeal from a judgment (denominated order) of the Supreme Court, Oneida County (John G. Ringrose, A.J.), entered April 7, 2003 in an action pursuant to RPAPL article 15. The judgment was entered in favor of defendant County of Oneida after a nonjury trial. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: In this action brought pursuant to RPAPL article 15 to determine title to certain real property, plaintiff appeals from a judgment entered in favor of defendant County of Oneida (County) following a nonjury trial. We affirm for reasons stated in the decision at Supreme Court (John G. Ringrose, A.J.). We add only that there is no merit to the contention of plaintiff that the determination of Supreme Court (Anthony E Shaheen, J.) denying plaintiffs motion to strike the County’s answer became null and void when Justice Shaheen thereafter recused himself from the case. “[I]t is well established that, absent a showing of actual bias or a statutory basis for recusal, proceedings conducted prior to a motion for recusal, or prior to a voluntary withdrawal from the case, remain valid” (Rochester Community Individual Practice Assn. v Excellus Health Plan [appeal No. 2], 305 AD2d 1007, 1008 [2003], lv dismissed 1 1015 NY3d 546 [2003]). The motion therefore was properly denied when it was brought again before Acting Justice Ringrose (see Home Mtge. Corp. v Saxon Equities Corp., 241 AD2d 511 [1997]). In any event, because the motion was, in effect, a motion for summary judgment when it was brought again, and plaintiffs own submissions on the motion raised a triable issue of fact regarding the County’s claim of title, the motion was properly denied “regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Gawera v Scrogg, 4 AD3d 760 [2004]). Present—Pigott, Jr., P.J., Green, Pine, Wisner and Lawton, JJ.