Preview
FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
DEUTSCHE BANK NATIONAL TRUST Index No.: 610955/2018
COMPANY,
AS TRUSTEE FOR MORGAN STANLEY ABS
CAPITAL I INC. TRUST 2004-NC6, MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2004-NC6,
AFFIRMATION IN
OPPOSITIOP{
Plaintiff,
-against-
MARIE BLAISE; WILSON MILORD; PEOPLE OF THE
STATE OF NEW YORK; TOWN SUPERVISOR,
TOWN OF ISLIP; GOOD SAMARITAN HOSPITAL
MEDICAL CENTER; DISCOVER BANK; CACH LLC;
MIDLAND FUNDING LLC D/B/A IN NEW YORK AS
MIDLAND FUNDING OF DELAWARE LLC APO GE
MONEY BANK; JAWAM INC DBA EMPIRE BAIL
BONDS,
#1" #12,"
"JOHN DOE through "JOHN DOE the last
twelve names being fictitious and unknown to plaintiff,
the persons or parties intended being the tenants,
occupants, persons or corporations, if any, having or
claiming an interest in or lien upon the Subject Property
described in the Complaint,
Defendants.
-----------------------------------------------------------------------X
I, Samantha Sandler, Esq., pursuant to CPLR § 2106 and under the penalties of perjury,
affirms as follows:
1. I am an associate of the firm of RAS Boriskin, LLC, the attorneys for the Plaintiff,
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN
STANLEY ABS CAPITAL I INC. TRUST 2004-NC6, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2004-NC6 (hereinafter referred to as "Plaintiff").
1 of 7
FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019
2. I am fully familiar with the facts and circumstances of the case, the basis of my
knowledge being the files maintained by the office with respect to this matter.
3. The above-entitled action is for the foreclosure of a Mortgage for the premises
known as 190 Calebs Path, Brentwood, New York 11717 (hereinafter referred to as "Subject
Premises").
4. I submit this Affirmation in Opposition to the Motion seeking recusal of the
Honorable James Hudson submitted by defendants Marie Blaise and Wilson Milord (hereinafter
"Defendants" "Defendants'
and Motion").
Defendants'
5. Motion must be denied because Defendants failed to demonstrate that
recusal of the Honorable James Hudson is warranted in this matter.
Defendants'
6. As a consequence, Motion must be denied in itsentirety.
STATEMENTOFFACTS
7. Wilson Milord (the "Borrower") executed a note dated March 12, 2004 in the
"A."
amount of $289,000.00 ("Note"). A copy of Note is annexed hereto as Exhibit As security
for the Note, the Borrower executed a mortgage, secured by the Premises, dated March 12, 2004
("Mortgage"). Thereafter, by Order recorded on June 17, 2010 in Liber: M00021957 at Page: 476,
a copy of the Mortgage was permitted to be recorded. A copy of the recorded Order and Mortgage
is annexed hereto as Exhibit "B".
8. The Note was endorsed for the benefit of, and transferred to, Plaintiff. The Court
of Appeals recently held that itis the note, not the mortgage that conveys standing to foreclose and
that "any disparity between the holder of the note and the mortgage of record does not stand as a
action."
bar to a foreclosure Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 12 NYS3d 612
of Appeals Wells Fargo NA v. 2015 NY 09673 (2nd Dept.
(Ct. 2015); Bank, Charlaff Slip Op
2 of 7
FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019
2015). The Mortgage was assigned to the Plaintiff by an Assignment of Mortgage which was
recorded in the Office of the City Register of the City of New York. A copy of the Assignment of
Mortgage is annexed hereto as Exhibit "C".
9. Thereafter, the Borrower defaulted on the loan by failing to make the September 1,
2012 payment and subsequent payments. The Summons and Complaint, Notice of Pendency, and
"D."
Certificate of Merit, with exhibits, are annexed hereto as Exhibit
10. Thereafter, the default having not been cured, the Plaintiff then elected to accelerate
the Mortgage debt and declare all sums secured thereunder due and payable.
PROCEDURAL POSTURE
11. Plaintiff filed a Summons and Complaint against the defendants on June 8, 2018 in
the Suffolk County Clerk's Office. The complaint was filed with Index No. 610955/2018. See
"D."
aforementioned Exhibit
12. All defendants were served pursuant to CPLR 308. Copies of the Affidavits of
"E."
Service are annexed hereto as Exhibit
13. On July 26, 2018, Defendant filed an Answer to Plaintiff's Complaint. A copy of
"F."
the Answer is annexed hereto as Exhibit
14. Following same, a settlement conference, pursuant to CPLR §3408, was held on
February 21, 2019 at which the matter was marked "not settled". A copy of the applicable
- "G."
WebCivil Supreme Appearance and Motion Details are annexed hereto as Exhibit
15. On December 24, 2018, Defendants filed a motion seeking dismissal of the action
due to the Borrower's allegedly forged signature on the loan documents. However, said motion
Defendants'
was denied by Order entered on July 3, 2019. The Court found therein that allegations
were vague, conclusory, unsubstantiated and insufficient to form a basis upon which relief may be
3 of 7
FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019
granted. Defendants were served with said Order with Notice of Entry on July 24, 2019. A copy
"H."
of the Order with Notice of Entry is annexed hereto as Exhibit
16. Thereafter, on July 23, 2019, Defendants filed a motion seeking to reargue
Defendants'
motion to dismiss and resulting Order. However, said motion was denied by Order
entered on September 10, 2019. The Court found therein that Defendants had repeated the
identical request for relief refused by the Court in the Order entered on July 3, 2019. Further, the
Court cautions Defendants against making future unsubstantiated motions of questionable merit in
this matter. Defendants were served with said Order with Notice of Entry on September 11, 2019.
"I."
A copy of the Order with Notice of Entry is annexed hereto as Exhibit
17. Thereafter, Defendants filed three separate motions seeking to compel discovery
(Motion Sequence #s 3 through 5) which are all pending with the Court for a decision. See
"G."
aforementioned Exhibit
18. Subsequently, on or about November 25, 2019, Defendant filed the instant Motion.
ARGUMENT
I. DEFENDANTS FAILED TO DEMONSTRATE THAT RECUSAL IS WARRANTED
IN THIS MATTER
Defendants'
19. Motion seeks the recusal of the Honorable James Hudson because his
Defendants'
Honor was the assigned judge to hear previous criminal matter and Defendants
believe that he is biased. In said criminal matter, it appears that the Borrower pled guilty to
criminally negligent homicide.
20. In support of Defendant's Motion, Defendant submits two articles discussing his
previous criminal matter. Both of the articles do not appear to support Defendants allegations that
Judge Hudson is biased in any way or would be unable to serve with complete impartiality.
4 of 7
FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019
21. In fact, the Newsday article exhibited to Defendant's Motion states that the
resign"
Borrower "appeared to be trying to delay his trialby forcing his defense attorneys to and
"when Hudson last week ordered Milord to represent himself at trial,the judge cited what he called
pattern' quit."
'clear in which Milord frequently refused to pay his private attorneys, who then
Further, the article notes that the Honorable James Hudson delayed jury selection in order to allow
the Borrower more time to settle a dispute with his then-attorney. the Borrower's then-
Lastly,
attorney noted that he could not discuss the case with Newsday, but in his opinion Judge Hudson
honorable." "A"
"is most See Exhibit of Defendant's Motion.
22. Judiciary Law §14, entitled "disqualification of judge by reason of interest or
consanguinity", governs recusal due to a legal disqualification and provides the following:
"A judge shall not sitas such in, or take any part in the decision of, an action, claim, matter,
motion or proceeding to which he isa party, or in which he has been attorney or counsel,
or in which he is interested, or if he is related by consanguinity or affinity to any party to
the controversy within the sixth degree. The degree shall be ascertained by ascending from
the judge to the common ancestor, descending to the party, counting a degree for each
person in both lines, including the judge and party, and excluding the common ancestor.
But no judge of a court of record shall be disqualified in any action, claim, matter, motion
or proceeding in which an insurance company is a party or is interested by reason of his
being a policy holder therein. No judge shall be deemed disqualified from passing upon
any litigation before him because of his ownership of shares of stock or other securities of
a corporate litigant, provided that the parties, by their attorneys, in writing, or in open court
judge."
upon the record, waive any claim as to disqualification of the
23. In this matter, Defendant has failed to demonstrate that recusal is required pursuant
to Judiciary Law §14.
24. Further, in Yonkers Firefighters, Local 628, International Association of
(2nd
Firefighters,AFL-CIOv. CityofYonkers, 175 A.D.3d 695, 109 N.Y.S.3d 187 Dept. 2019),
the Second Department discusses the trial court's determination of discretionary recusal absent a
legal disqualification under Judiciary Law §14. Therein, the Second Department found the
foregoing,
5 of 7
FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019
"With regard to the question of discretionary recusal, we likewise agree with the Supreme
petitioners'
Court's denial of the request for recusal of the Supreme Court Justice based on
alleged impropriety or bias. Absent a legal disqualification under Judiciary Law § 14, "the
determination concerning a motion *697 seeking recusal based on alleged impropriety,
court' "
bias, or prejudice is within the discretion and 'the personal conscience of the
(Daniels v. City of New York, 96 A.D.3d 895, 895, 946 N.Y.S.2d 510, quoting People v.
Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200; see Sassower v. Gannett
Co., Inc., 109 A.D.3d 607, 609, 972 N.Y.S.2d 41). "Recusal, as a matter of due process, is
required only where there exists a direct, personal, substantial or pecuniary interest in
exist"
reaching a particular conclusion, or where a clash in judicial roles is seen to (People
v. Alomar, 93 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958 [citation
omitted] ; see Ralis v. Ralis, 146 A.D.3d 831, 833, 46 N.Y.S.3d 631; Matter of Khan v.
Dolly, 39 A.D.3d 649, 650-651, 833 N.Y.S.2d 608). The denial of a recusal motion will
constitute an improvident exercise of discretion only where the movant puts forth
demonstrable proof of the judge's bias or prejudgment (see Matter of Rodriguez v.
Liegey, 132 A.D.3d 880, 880-881, 18 N.Y.S.3d 161; Schwartzberg v. Kingsbridge Hgts.
Care Ctr., Inc., 28 A.D.3d 465, 466, 813 N.Y.S.2d 191; Modica v. Modica, 15 A.D.3d 635,
"
636, 791 N.Y.S.2d 134). '[A]bsent a showing of actual bias or a statutory basis
for recusal, proceedings conducted prior to a motion for recusal, or prior to a voluntary
valid' "
withdrawal from the case, remain ( **189 Ulrich v. Estate of Zdunkiewicz, 8
A.D.3d 1014, 1014, 778 N.Y.S.2d 582, quoting Rochester Community Individual Practice
Assn. v. Excellus Health Plan, 305 A.D.2d 1007, 1008, 758 N.Y.S.2d 576 ; see Matter of
Kurz v. Justices of Supreme Ct. of N.Y , Kings County, 228 A.D.2d 74, 76, 654 N.Y.S.2d
783).
Here, the petitioners failed to present any evidence that the Supreme Court Justice had any
improper interest in the outcome of this proceeding or harbored actual bias against the
petitioners so as to warrant the conclusion that her denial of their recusal request was an
improvident exercise of discretion (see Matter of Bianco v. Bruce-Ross, 151 A.D.3d 716,
717-718, 56 N.Y.S.3d 243; Matter of Imre v. Johnson, 54 A.D.3d 427, 428, 863 N.Y.S.2d
473 ; Schreiber-Cross v. State of New York, 31 A.D.3d 425, 819 N.Y.S.2d
530 ; Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d at 466, 813 N.Y.S.2d
191)."
25. Accordingly, it is within the Court's sole discretion to determine whether the
Honorable James Hudson can serve with complete impartiality, in fact or appearance.
26. Defendant has wholly failed to demonstrate that if Judge Hudson does not recuse
himself, there exists a direct, personal, substantial or pecuniary interest in reaching a particular
conclusion. Further, Defendant fails to put forth demonstrable proof of the Honorable James
Hudson's bias or prejudgment in this matter so as to warrant the recusal of the assigned judge.
6 of 7
FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018
NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019
27. Additionally, the Honorable James Hudson has already made two rulings in this
Defendants'
matter, as discussed supra, and has four pending motions before him currently.
Defendants were not heard to complain until they made their sixth Motion. See aforementioned
"H" "I."
Exhibits and
28. Surely, Defendants cannot believe that solely because Judge Hudson oversaw the
Borrower's previous criminal matter, he would not be able to be impartial in this matter.
29. Clearly, this is just another delay tactic on behalf of Defendants and same should
not be condoned by the Court, especially in the absence of any proof of actual bias.
Defendants'
30. Based on the foregoing, Motion should be denied in its entirety.
Defendants'
WHEREFORE, Plaintiff prays for a judgment denying Motion in itsentirety
and for such other and further relief as this Court may deem just and proper.
Dated: December 5, 2019
Westbury, New York
RAS BORISKIN, LLC
By: Samantha Sandler, Esq.
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, New York 11590
Telephone: 516.280.7675
7 of 7
Preview
FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK DEUTSCHE BANK NATIONAL TRUST Index No.: 610955/2018 COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2004-NC6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-NC6, AFFIRMATION IN OPPOSITIOP{ Plaintiff, -against- MARIE BLAISE; WILSON MILORD; PEOPLE OF THE STATE OF NEW YORK; TOWN SUPERVISOR, TOWN OF ISLIP; GOOD SAMARITAN HOSPITAL MEDICAL CENTER; DISCOVER BANK; CACH LLC; MIDLAND FUNDING LLC D/B/A IN NEW YORK AS MIDLAND FUNDING OF DELAWARE LLC APO GE MONEY BANK; JAWAM INC DBA EMPIRE BAIL BONDS, #1" #12," "JOHN DOE through "JOHN DOE the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the Subject Property described in the Complaint, Defendants. -----------------------------------------------------------------------X I, Samantha Sandler, Esq., pursuant to CPLR § 2106 and under the penalties of perjury, affirms as follows: 1. I am an associate of the firm of RAS Boriskin, LLC, the attorneys for the Plaintiff, DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2004-NC6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-NC6 (hereinafter referred to as "Plaintiff"). 1 of 7 FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019 2. I am fully familiar with the facts and circumstances of the case, the basis of my knowledge being the files maintained by the office with respect to this matter. 3. The above-entitled action is for the foreclosure of a Mortgage for the premises known as 190 Calebs Path, Brentwood, New York 11717 (hereinafter referred to as "Subject Premises"). 4. I submit this Affirmation in Opposition to the Motion seeking recusal of the Honorable James Hudson submitted by defendants Marie Blaise and Wilson Milord (hereinafter "Defendants" "Defendants' and Motion"). Defendants' 5. Motion must be denied because Defendants failed to demonstrate that recusal of the Honorable James Hudson is warranted in this matter. Defendants' 6. As a consequence, Motion must be denied in itsentirety. STATEMENTOFFACTS 7. Wilson Milord (the "Borrower") executed a note dated March 12, 2004 in the "A." amount of $289,000.00 ("Note"). A copy of Note is annexed hereto as Exhibit As security for the Note, the Borrower executed a mortgage, secured by the Premises, dated March 12, 2004 ("Mortgage"). Thereafter, by Order recorded on June 17, 2010 in Liber: M00021957 at Page: 476, a copy of the Mortgage was permitted to be recorded. A copy of the recorded Order and Mortgage is annexed hereto as Exhibit "B". 8. The Note was endorsed for the benefit of, and transferred to, Plaintiff. The Court of Appeals recently held that itis the note, not the mortgage that conveys standing to foreclose and that "any disparity between the holder of the note and the mortgage of record does not stand as a action." bar to a foreclosure Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 12 NYS3d 612 of Appeals Wells Fargo NA v. 2015 NY 09673 (2nd Dept. (Ct. 2015); Bank, Charlaff Slip Op 2 of 7 FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019 2015). The Mortgage was assigned to the Plaintiff by an Assignment of Mortgage which was recorded in the Office of the City Register of the City of New York. A copy of the Assignment of Mortgage is annexed hereto as Exhibit "C". 9. Thereafter, the Borrower defaulted on the loan by failing to make the September 1, 2012 payment and subsequent payments. The Summons and Complaint, Notice of Pendency, and "D." Certificate of Merit, with exhibits, are annexed hereto as Exhibit 10. Thereafter, the default having not been cured, the Plaintiff then elected to accelerate the Mortgage debt and declare all sums secured thereunder due and payable. PROCEDURAL POSTURE 11. Plaintiff filed a Summons and Complaint against the defendants on June 8, 2018 in the Suffolk County Clerk's Office. The complaint was filed with Index No. 610955/2018. See "D." aforementioned Exhibit 12. All defendants were served pursuant to CPLR 308. Copies of the Affidavits of "E." Service are annexed hereto as Exhibit 13. On July 26, 2018, Defendant filed an Answer to Plaintiff's Complaint. A copy of "F." the Answer is annexed hereto as Exhibit 14. Following same, a settlement conference, pursuant to CPLR §3408, was held on February 21, 2019 at which the matter was marked "not settled". A copy of the applicable - "G." WebCivil Supreme Appearance and Motion Details are annexed hereto as Exhibit 15. On December 24, 2018, Defendants filed a motion seeking dismissal of the action due to the Borrower's allegedly forged signature on the loan documents. However, said motion Defendants' was denied by Order entered on July 3, 2019. The Court found therein that allegations were vague, conclusory, unsubstantiated and insufficient to form a basis upon which relief may be 3 of 7 FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019 granted. Defendants were served with said Order with Notice of Entry on July 24, 2019. A copy "H." of the Order with Notice of Entry is annexed hereto as Exhibit 16. Thereafter, on July 23, 2019, Defendants filed a motion seeking to reargue Defendants' motion to dismiss and resulting Order. However, said motion was denied by Order entered on September 10, 2019. The Court found therein that Defendants had repeated the identical request for relief refused by the Court in the Order entered on July 3, 2019. Further, the Court cautions Defendants against making future unsubstantiated motions of questionable merit in this matter. Defendants were served with said Order with Notice of Entry on September 11, 2019. "I." A copy of the Order with Notice of Entry is annexed hereto as Exhibit 17. Thereafter, Defendants filed three separate motions seeking to compel discovery (Motion Sequence #s 3 through 5) which are all pending with the Court for a decision. See "G." aforementioned Exhibit 18. Subsequently, on or about November 25, 2019, Defendant filed the instant Motion. ARGUMENT I. DEFENDANTS FAILED TO DEMONSTRATE THAT RECUSAL IS WARRANTED IN THIS MATTER Defendants' 19. Motion seeks the recusal of the Honorable James Hudson because his Defendants' Honor was the assigned judge to hear previous criminal matter and Defendants believe that he is biased. In said criminal matter, it appears that the Borrower pled guilty to criminally negligent homicide. 20. In support of Defendant's Motion, Defendant submits two articles discussing his previous criminal matter. Both of the articles do not appear to support Defendants allegations that Judge Hudson is biased in any way or would be unable to serve with complete impartiality. 4 of 7 FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019 21. In fact, the Newsday article exhibited to Defendant's Motion states that the resign" Borrower "appeared to be trying to delay his trialby forcing his defense attorneys to and "when Hudson last week ordered Milord to represent himself at trial,the judge cited what he called pattern' quit." 'clear in which Milord frequently refused to pay his private attorneys, who then Further, the article notes that the Honorable James Hudson delayed jury selection in order to allow the Borrower more time to settle a dispute with his then-attorney. the Borrower's then- Lastly, attorney noted that he could not discuss the case with Newsday, but in his opinion Judge Hudson honorable." "A" "is most See Exhibit of Defendant's Motion. 22. Judiciary Law §14, entitled "disqualification of judge by reason of interest or consanguinity", governs recusal due to a legal disqualification and provides the following: "A judge shall not sitas such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he isa party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree. The degree shall be ascertained by ascending from the judge to the common ancestor, descending to the party, counting a degree for each person in both lines, including the judge and party, and excluding the common ancestor. But no judge of a court of record shall be disqualified in any action, claim, matter, motion or proceeding in which an insurance company is a party or is interested by reason of his being a policy holder therein. No judge shall be deemed disqualified from passing upon any litigation before him because of his ownership of shares of stock or other securities of a corporate litigant, provided that the parties, by their attorneys, in writing, or in open court judge." upon the record, waive any claim as to disqualification of the 23. In this matter, Defendant has failed to demonstrate that recusal is required pursuant to Judiciary Law §14. 24. Further, in Yonkers Firefighters, Local 628, International Association of (2nd Firefighters,AFL-CIOv. CityofYonkers, 175 A.D.3d 695, 109 N.Y.S.3d 187 Dept. 2019), the Second Department discusses the trial court's determination of discretionary recusal absent a legal disqualification under Judiciary Law §14. Therein, the Second Department found the foregoing, 5 of 7 FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019 "With regard to the question of discretionary recusal, we likewise agree with the Supreme petitioners' Court's denial of the request for recusal of the Supreme Court Justice based on alleged impropriety or bias. Absent a legal disqualification under Judiciary Law § 14, "the determination concerning a motion *697 seeking recusal based on alleged impropriety, court' " bias, or prejudice is within the discretion and 'the personal conscience of the (Daniels v. City of New York, 96 A.D.3d 895, 895, 946 N.Y.S.2d 510, quoting People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200; see Sassower v. Gannett Co., Inc., 109 A.D.3d 607, 609, 972 N.Y.S.2d 41). "Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in exist" reaching a particular conclusion, or where a clash in judicial roles is seen to (People v. Alomar, 93 N.Y.2d 239, 246, 689 N.Y.S.2d 680, 711 N.E.2d 958 [citation omitted] ; see Ralis v. Ralis, 146 A.D.3d 831, 833, 46 N.Y.S.3d 631; Matter of Khan v. Dolly, 39 A.D.3d 649, 650-651, 833 N.Y.S.2d 608). The denial of a recusal motion will constitute an improvident exercise of discretion only where the movant puts forth demonstrable proof of the judge's bias or prejudgment (see Matter of Rodriguez v. Liegey, 132 A.D.3d 880, 880-881, 18 N.Y.S.3d 161; Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d 465, 466, 813 N.Y.S.2d 191; Modica v. Modica, 15 A.D.3d 635, " 636, 791 N.Y.S.2d 134). '[A]bsent a showing of actual bias or a statutory basis for recusal, proceedings conducted prior to a motion for recusal, or prior to a voluntary valid' " withdrawal from the case, remain ( **189 Ulrich v. Estate of Zdunkiewicz, 8 A.D.3d 1014, 1014, 778 N.Y.S.2d 582, quoting Rochester Community Individual Practice Assn. v. Excellus Health Plan, 305 A.D.2d 1007, 1008, 758 N.Y.S.2d 576 ; see Matter of Kurz v. Justices of Supreme Ct. of N.Y , Kings County, 228 A.D.2d 74, 76, 654 N.Y.S.2d 783). Here, the petitioners failed to present any evidence that the Supreme Court Justice had any improper interest in the outcome of this proceeding or harbored actual bias against the petitioners so as to warrant the conclusion that her denial of their recusal request was an improvident exercise of discretion (see Matter of Bianco v. Bruce-Ross, 151 A.D.3d 716, 717-718, 56 N.Y.S.3d 243; Matter of Imre v. Johnson, 54 A.D.3d 427, 428, 863 N.Y.S.2d 473 ; Schreiber-Cross v. State of New York, 31 A.D.3d 425, 819 N.Y.S.2d 530 ; Schwartzberg v. Kingsbridge Hgts. Care Ctr., Inc., 28 A.D.3d at 466, 813 N.Y.S.2d 191)." 25. Accordingly, it is within the Court's sole discretion to determine whether the Honorable James Hudson can serve with complete impartiality, in fact or appearance. 26. Defendant has wholly failed to demonstrate that if Judge Hudson does not recuse himself, there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion. Further, Defendant fails to put forth demonstrable proof of the Honorable James Hudson's bias or prejudgment in this matter so as to warrant the recusal of the assigned judge. 6 of 7 FILED: SUFFOLK COUNTY CLERK 12/11/2019 02:00 PM INDEX NO. 610955/2018 NYSCEF DOC. NO. 102 RECEIVED NYSCEF: 12/11/2019 27. Additionally, the Honorable James Hudson has already made two rulings in this Defendants' matter, as discussed supra, and has four pending motions before him currently. Defendants were not heard to complain until they made their sixth Motion. See aforementioned "H" "I." Exhibits and 28. Surely, Defendants cannot believe that solely because Judge Hudson oversaw the Borrower's previous criminal matter, he would not be able to be impartial in this matter. 29. Clearly, this is just another delay tactic on behalf of Defendants and same should not be condoned by the Court, especially in the absence of any proof of actual bias. Defendants' 30. Based on the foregoing, Motion should be denied in its entirety. Defendants' WHEREFORE, Plaintiff prays for a judgment denying Motion in itsentirety and for such other and further relief as this Court may deem just and proper. Dated: December 5, 2019 Westbury, New York RAS BORISKIN, LLC By: Samantha Sandler, Esq. Attorneys for Plaintiff 900 Merchants Concourse, Suite 310 Westbury, New York 11590 Telephone: 516.280.7675 7 of 7