NEW YORK STATE URBAN DEVELOPMENT CO v. FALLSITE, LLC

          SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

495
CA 11-01286
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF THE APPLICATION OF
PETITIONER/CONDEMNOR NEW YORK STATE URBAN
DEVELOPMENT CORPORATION, DOING BUSINESS AS
EMPIRE STATE DEVELOPMENT CORPORATION,
PETITIONER-RESPONDENT, TO ACQUIRE
IN FEE SIMPLE CERTAIN REAL PROPERTY
CURRENTLY OWNED BY FALLSITE, LLC, AND
KNOWN AS:

232   SIXTH STREET, CITY OF NIAGARA FALLS          MEMORANDUM AND ORDER
700   RAINBOW BLVD., CITY OF NIAGARA FALLS
231   SIXTH STREET, CITY OF NIAGARA FALLS
626   RAINBOW BLVD., CITY OF NIAGARA FALLS
701   FALLS STREET, CITY OF NIAGARA FALLS

SITUATED IN THE COUNTY OF NIAGARA, STATE OF
NEW YORK AND HAVING, RESPECTIVELY; THE FOLLOWING
TAX SECTIONS, BLOCKS, AND LOTS:

159.09-2-25.122
159.09-2-25.112
159.09-2-25.121
159.09-2-25.111
159.09-2-25.211

TOGETHER WITH ALL COMPENSABLE INTERESTS THEREIN
CURRENTLY OWNED BY FALLSITE, LLC, FALLSVILLE
SPLASH, LLC AND ANY OTHER CONDEMNEES WHO ARE
CURRENTLY UNKNOWN.
------------------------------------------------
FALLSITE, LLC AND FALLSVILLE SPLASH, LLC,
RESPONDENTS-APPELLANTS.


JOHN P. BARTOLOMEI & ASSOCIATES, NIAGARA FALLS, D.J. & J.A. CIRANDO,
ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.

HARRIS BEACH PLLC, PITTSFORD (PHILIP G. SPELLANE OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Richard C. Kloch, Sr., A.J.), entered January 24, 2011. The order,
inter alia, denied respondents’ cross motion for a mistrial and
recusal.
                                 -2-                           495
                                                         CA 11-01286

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this condemnation proceeding, respondents appeal
from an order that, inter alia, denied their cross motion for a
mistrial and recusal based upon Supreme Court’s alleged relationship
with a partner at the law firm representing petitioner and comments
made by the court in other proceedings concerning the viability of
development in the Niagara Falls area. We affirm. Neither of the
grounds raised in support of recusal invoke the court’s mandatory duty
to recuse itself (see Judiciary Law § 14). Thus, recusal was a matter
for the court’s discretion, and we perceive no abuse of that
discretion (see Caplash v Rochester Oral & Maxillofacial Surgery
Assoc., LLC, 63 AD3d 1683, 1686; Matter of Gutzmer v Santini, 60 AD3d
1295, lv dismissed 12 NY3d 889).




Entered:   April 27, 2012                       Frances E. Cafarell
                                                Clerk of the Court