The record clearly reveals that the Shanes' decision to sell to Mr.
Selleck as opposed to the Mitchell's was dictated by economical concerns
and by their desire to sell the property expeditiously. The Court of
Appeals for the Second Circuit found each of the material facts to be
undisputed in their Decision. Mitchell v. Century 21 Rustic Realty, No.
02-7495, Summary Order (2nd Cir. September 6, 2002). They still are.
Plaintiffs continued failure to adduce any evidence to the contrary
requires that Defendants' motion for summary judgment be granted, and
that the pending sale of the Subject Property be consummated without
B. Request For Recusal
The Mitchells' responsive memorandum requests that this Court and
Magistrate Judge Wall recuse themselves from this matter because they are
allegedly, "heavily biased in favor of the defense and unlikely to render
an impartial decision on the merits." (Plaintiff's Mem. at 10.) In order
to grant the Mitchells' recusal request, "the Court must be convinced
that `facts have been presented, assuming the truth, that would lead a
reasonable person to infer that bias or prejudice existed, thereby
foreclosing the impartiality of judgment." Dee v. Institutional Networks
Corp., 559 F. Supp. 1282, 1284 (S.D.N.Y. 1983) (quoting Markus v. United
States, 545 F. Supp. 998, 1000 (S.D.N.Y.) 1982, aff'd, 742 F.2d 1444 (2d
The Court first notes that the Mitchells have failed to file any
affidavit signed by them in support of the recusal request. This alone is
a basis for denial of that request. Paschall v. Mayone, 454 F. Supp. 1289,
1300 (S.D.N.Y. 1978). Nonetheless, neither this Court nor Magistrate
Judge Wall have acted with any bias towards the Mitchells. This Court's
prior decision was based on the evidence presented to it (or lack thereof)
and by the relevant law and was upheld by the Court of Appeals.
The Mitchells' claim that there has been bias based on ex-parte
communications with the Court regarding the motion schedule for summary
judgment is incorrect. All communications regarding Defendants' Order to
Show Cause were between the parties and the Court's courtroom deputy, who
was contacted by Defendants' counsel when SM allegedly refused to set a
briefing schedule in accordance with this Court's rules. It is the
courtroom deputy's responsibility to set hearing dates. Moreover, the
Order to Show Cause required that service be made upon Plaintiffs on the
same day it was filed with the Court. (Order to Show Cause, pg. 2.)
In fact, it is SM who has repeatedly called this Court's chambers
regarding this case and has faxed documents to this Court ex-parte.
Specifically, SM faxed this Court a letter on October 19, 2002, seeking
reconsideration of its October 18, 2002, ruling. Although the letter
stated that it had been copied to Defendants, it had not. (Moritt Reply
Aff. ¶ 30.)
The discovery schedule set out by this Court over the past few weeks
was necessitated by the Mitchells' delay over the past eight months in
conducting discovery, despite the pending sale, as well as the fact that
the Mitchells had already conducted a full evidentiary hearing.
Furthermore, this Court and Magistrate Judge Wall have given the
Mitchells multiple opportunities to dispose the Shanes, both in Florida
and by telephone. Each time SM elected not to proceed with the
SM's assertion that this Court believes that "only direct evidence of
racial discrimination is supportive of these type of claims" is also
incorrect. (Plaintiffs' Mem. of Law, pg. 10.) This Court is well aware,
as Judge Wall's Report makes clear, of "the difficulty any party faces in
presenting hard evidence of racial discrimination." (Report at 10.)
However, in this case there is absolutely no evidence of discrimination,
and it is clear that the Shanes had legitimate, nondiscriminatory reasons
for selecting the Selleck offer.
This Court perceives no manner in which a reasonable person could
conclude that it has acted impartially. Accordingly, the Mitchells'
request for recusal is DENIED.
Summary judgment is hereby GRANTED to all Defendants and the Notice of
Pendency is CANCELLED immediately. This Court will not issue a stay of
this Order and if Plaintiffs make any such application to the Second
Circuit, either orally or written, they must give Defendants a full and
fair opportunity to state their opposition. This Court will entertain
Defendants' motions for sanctions after Plaintiffs have had a chance to