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CURLEY v. ST. JOHN'S UNIV.

June 3, 1998

JAMES F. CURLEY, Plaintiff, against ST. JOHN'S UNIVERSITY, Defendant.


The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION ON RECUSAL MOTION

 Motley, J.:

 Plaintiff James F. Curley ("Curley") sued defendant St. John's University ("St. John's") for violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623. Curley is represented by Mr. Lee Nuwestra ("Nuwestra"). Curley filed the instant motion, pursuant to 28 U.S.C. § 455, seeking to have the undersigned judge recuse herself due to alleged personal bias against Nuwestra. Because the court finds that a reasonable person who knew all the relevant facts surrounding a prior proceeding in which Nuwestra was counsel would not conclude that the judge's impartiality in Curley v. St. John's University could reasonably be questioned, the court denies the § 455 motion.

 BACKGROUND

 Between the time that Curley v. St. John's University was filed and the present, the court held a bench trial in another case, Forbes v. Merrill Lynch et al., 96 Civ. 7461 (CBM), which was brought pursuant to the Americans With Disabilities Act. The trial occurred on Wednesday, October 1, Monday, October 6, and Tuesday, October 7, 1997. Before the opening statements on October 1, 1997, the following conversation occurred on the record:

 MR. NUWESTRA: Your Honor, may I ask one question of you?

 THE COURT: Yes.

 MR. NUWESTRA: One is that I am of the Jewish faith and I need to know what's happening with regard to the Jewish holidays. Secondly, I need to know from your Honor whether this is going to be a bifurcated trial with regard to liability and damages or just --

 THE COURT: Is that an open issue? We had not decided that?

 MR. NUWESTRA: We have not, Judge. . . . [Further mention of bifurcation issue]

 THE COURT: With respect to your question what about the jewish holiday, when does that begin and when does it end?

 MR. NUWESTRA: It begins, your Honor, sundown today and there should be a lot of traffic, and tomorrow is the main day of the holiday. Some people--

 THE COURT: Then we'll go as far we can today and we are going to recess until Monday but just a moment, I'll have to check the calendar. (Pause.) Yes, we will continue Monday at 10 o'clock.

 MR. NUWESTRA: Thank you, your Honor. With respect to the second issue, your Honor.

 THE COURT: With respect to the bifurcation issue. . . .

 Later that day, the subject of Rosh Hashanah was ...


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