Impastato v. Impastato
| Decision Date | 12 May 2009 |
| Docket Number | 2008-07731.,2008-05083. |
| Citation | 62 A.D.3d 752,879 N.Y.S.2d 509,2009 NY Slip Op 03867 |
| Parties | DAVID J. IMPASTATO, Respondent, v. SALLY REED IMPASTATO, Appellant. CLEMENT S. PATTI, JR., Nonparty Appellant. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the appeal by the defendant from so much of the order dated August 4, 2008, as granted that branch of the plaintiff's cross motion which was for the imposition of a sanction pursuant to 22 NYCRR 130-1.1 to the extent of directing her attorney to pay a sanction in the sum of $2,500 is dismissed, as the defendant is not aggrieved by that portion of the order (see CPLR 5511); and it is further,
Ordered that the appeal by the nonparty, Clement S. Patti, Jr., from so much of the order dated August 4, 2008, as denied that branch of the defendant's motion which was for recusal and granted that branch of the plaintiff's cross motion which was for the award of an attorney's fee pursuant to 22 NYCRR 130-1.1 is dismissed, as he is not aggrieved by that portion of the order; and it is further Ordered that the orders are affirmed, with one bill of costs to the plaintiff.
The court properly denied that branch of the defendant's motion which was for permission to relocate to the State of Texas with the parties' two children since she did not establish, by a preponderance of the evidence, that the proposed relocation would be in the children's best interests (see Matter of Tropea v Tropea, 87 NY2d 727, 741 [1996]). The evidence adduced at the hearing provided a sound basis to conclude that the interstate move would have an adverse impact on the quality and quantity of the children's future contact with their father and would not guarantee the children any emotional, educational, or economic benefit (id. at 740-741; see Matter of Dukes v McPherson, 50 AD3d 1529, 1530 [2008]; Matter of Zammit v Novellino, 30 AD3d 534 [2006]; Matter of Confort v Nicolai, 309 AD2d 861 [2003]).
Further, absent a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of his or her recusal (see People v Moreno, 70 NY2d 403, 405 [1987]; Matter of Susan B., 264 AD2d 478, 479 [1999]). Here, on that branch of her motion which was for recusal, the defendant failed to set forth any proof of the Supreme Court's bias or prejudice. Under these circumstances, the Supreme Court providently exercised its discretion in denying that branch of the defendant's motion (see People ex rel. Smulczeski v Smulczeski, 18 AD3d 785, 786 [2005]; Modica v Modica, 15 AD3d 635, 636 [2005]; Colella v Colella, 11 AD3d 576 [2004]).
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