Silber v. Silber
| Decision Date | 10 May 2011 |
| Citation | 84 A.D.3d 931,2011 N.Y. Slip Op. 04035,923 N.Y.S.2d 131 |
| Parties | Daniel SILBER, appellant,v.Eda SILBER, respondent. |
| Court | New York Supreme Court — Appellate Division |
84 A.D.3d 931
923 N.Y.S.2d 131
2011 N.Y. Slip Op. 04035
Daniel SILBER, appellant,
v.
Eda SILBER, respondent.
Supreme Court, Appellate Division, Second Department, New York.
May 10, 2011.
[923 N.Y.S.2d 132]
Gassman, Baiamonte, Betts & Tannenbaum, P.C., Garden City, N.Y. (Stephen Gassman and Cheryl Y. Mallis of counsel), for appellant.Robert Hiltzik, Jericho, N.Y., for respondent.PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
[84 A.D.3d 931] In an action for a divorce and ancillary relief, the husband appeals from an order of the Supreme Court, Nassau County (Gartenstein, J.H.O.), dated July 21, 2010, which granted the wife's motion to recuse Judicial Hearing Officer Stanley Gartenstein from the trial of the action.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the wife's motion to recuse Judicial Hearing Officer Stanley Gartenstein from the trial of the action is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings on the complaint.
After 16 days of testimony in this contentious divorce action before a judicial hearing officer (hereinafter the JHO), the JHO learned from a member of his family that the family member had just been hired by the husband's father to babysit for the husband's children for four days. The husband's father was unaware[84 A.D.3d 932] that the babysitter and the JHO were members of the same family. Upon learning of the hiring, the JHO immediately convened the attorneys and disclosed the situation. Eventually, upon the wife's motion, the JHO recused himself. The husband appeals.
Absent a legal disqualification under Judiciary Law § 14, a court is the sole arbiter of the need for recusal, and this “discretionary decision is within the
personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of ‘nonjudicial data’ ” ( People v. Moreno, 70 N.Y.2d 403, 405–406, 521 N.Y.S.2d 663, 516 N.E.2d 200, quoting People v. Horton, 18 N.Y.2d 355, 362, 275 N.Y.S.2d 377, 221 N.E.2d 909, cert. denied 387 U.S. 934, 87 S.Ct. 2059, 18 L.Ed.2d 997; see Matter of Alyssa A. [ Michelle N.—Sandra N.], 79 A.D.3d 740, 742, 913 N.Y.S.2d 690, lv. denied 16 N.Y.3d 704, 2011 WL 536552; Irizarry v. State of New York, 56 A.D.3d 613, 614, 867 N.Y.S.2d 336; Matter of Imre v. Johnson, 54 A.D.3d 427, 427–428, 863 N.Y.S.2d 473; EECP Ctrs. of Am. v. Vasomedical, Inc.,...
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