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Kyle v. Lebovits

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 20, 2009

IN RE WILLIAM KYLE, ET AL., PETITIONERS-APPELLANTS,
v.
HON. GERALD LEBOVITS, ETC., RESPONDENT-RESPONDENT,
736 RIVERSIDE DR., LLC, RESPONDENT.

Order, Supreme Court, New York County (Herman Cahn, J.), entered November 1, 2007, insofar as it denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 seeking a writ in the nature of mandamus directing respondent judge to disqualify himself, nunc pro tunc to June 4, 2007, from all matters relative to two pending nonpayment proceedings, unanimously affirmed; appeal from the part of the order that imposed sanctions in the amount of $1,000 upon nonparty attorney Robin H. Kyle for engaging in frivolous conduct, unanimously dismissed; all with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Buckley, Acosta, Freedman, JJ.

110838/07

The record does not support a finding that Judge Lebovits was "interested" in the proceeding and thus required to recuse himself pursuant to Judiciary Law § 14. Absent a legal disqualification under Judiciary Law § 14, petitioners had no clear right to the remedy of mandamus (see Matter of Alizia McK., 25 AD3d 429 [2006]). Moreover, they had and have other adequate remedies at law by which to seek the retroactive disqualification of the judge (see Matter of Herskowitz v Tompkins, 184 AD2d 402, 402-403 [1992], appeal dismissed 80 NY2d 1023 [1992]).

The appeal from the part of the order that imposed sanctions against nonparty attorney Kyle must be dismissed because Kyle did not file an appeal from the order within the 30-day period established by CPLR 5513 (see Steinhardt Group v Citicorp, 303 AD2d 326 [2003], lv denied 100 NY2d 506 [2003]), and petitioners are not aggrieved by that part of the order (see Scopelliti v Town of New Castle, 92 NY2d 944 [1998]). Were we to consider the issue, we would perceive no basis for disturbing the court's exercise of discretion in sanctioning Kyle.

We have considered petitioners' remaining arguments and find them unavailing.

M-6033In re Kyle, et al. v Hon. Gerald Lebovits, etc., et al.

Motion seeking leave for judicial notice denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090120

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