Schwartz v. Schwartz & Schlacter

Order, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered July 9, 1991, which denied plaintiff’s motion to vacate the court’s prior order entered January 28, 1991 granting defendants summary judgment, unanimously affirmed, with costs. The IAS Court had properly determined that plaintiff had no standing as an individual shareholder to secure a personal recovery for an alleged wrong done to a corporation (Goldstein v Consolidated Edison Co., 115 AD2d 34, 40, lv denied 68 NY2d 604) and thus there were no grounds to vacate the prior determination. Nor was the alleged newly discovered evidence probative of the issue of standing. As defendants made a prima facie showing of entitlement to summary judgment and plaintiff failed to demonstrate the existence of triable material issues of fact, the grant of summary judgment was appropriate (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Whether the IAS Judge should have recused herself is not properly before this Court, since, absent an allegation that recusal is mandated under Judiciary Law § 14, the Judge is the sole arbiter of whether recusal is warranted (People v Moreno, 70 NY2d 403). We note, however, that plaintiff has not alleged anything which would give the appearance of 286 impropriety. Concur — Sullivan, J. P., Carro, Rosenberger and Rubin, JJ.