In motion sequence number 029, M. Teresa Daley, Esq. (Ms. Daley), as counsel for defendants 440 West 41st LLC (440 W 41) and US Suite LLC (US Suite) moves (1) to recuse this Court from presiding further over this action and for the case to be re-assigned to a new justice of this Court; (2) staying all proceedings and motions in this action, except for discovery, until such time as a new justice of this Court is assigned to this case and vacates the stay; (3) vacating all decisions heretofore made by this Court since on or about April 1, 2015 with respect to any attempt by anyone, including the Court, to cause a distribution of the approximately $15.8 million net proceeds from the sale of the building located at 440 West 41st Street, NY, NY 10036 which are presently held in an escrow account with Signature Bank; and (4) further staying all proceedings, except for discovery, until such time as Defendants have the opportunity to perfect [*2]their Appeal from this Court's decision with respect to Motion Sequence No. 18 and 22.

The facts set forth herein are taken from the parties' submissions and from the transcript of the oral argument which took place on December 22, 2015.

On December 22, 2015, the parties appeared on plaintiff's motion involving the turnover of escrow funds by the following attorneys: Y. David Scharf, Esq., Terence K. McLaughlin, Esq., and David Jaroslawicz, Esq. for plaintiff U-Trend; Claudio Dessberg, Esq. for defendants Aura, Hospitality and US Suite, and Ms. Daley for nominal defendants.

During the first portion of the proceeding, the parties argued plaintiff's summary judgment motion as to the interest component of their agreement. The parties were given more than an ample opportunity to make their respective argument. Specifically, the Justice permitted, and Ms. Daley did speak approximately 126 times (see 12/22/15 tr at 6-13, 20, 23, 26-30, 33-37, 44-48, 55-64, 67, 74-77).

After hearing all parties and Ms. Daley make her arguments on behalf of her client, this Court decided the first portion of the summary judgment motion on the record, granting it in favor of the plaintiff and against Ms. Daley's client, as to the interest component.

Dissatisfied with the outcome of the decision, Ms. Daley stood up in order to continue arguing. This Court, having completed that portion of the motion, directed Ms. Daley to sit and for plaintiff to continue argument with respect to the second portion of its motion (id. at 86). Ms. Daley did not follow this Court's instructions, continued to stand, and attempted again to address the Court (id.). This Court then ordered Ms. Daley (twice) to sit down, stating "this is not right", and for plaintiff's counsel to proceed with arguing the balance of the motion. Ms. Daley did not follow the Court's warning and continued to argue (id.).

This Court concluded that Ms. Daley would not cease to interrupt the proceedings and ordered Ms. Daley to leave the courtroom. Ms. Daley made an objection and did not comply. This Court gave Ms. Daley fair warning that if she failed to leave the courtroom as instructed, she would be held in contempt. This Court then left the courtroom stating "when she is out, let me know." Whereupon a recess was taken and Ms. Daley left the courtroom. No court officer was present at this time.

This Court permitted the remaining parties to continue to argue the motion without Ms. Daley present. Ms. Daley entered the courtroom at some point and sat in the rear of the courtroom, where members of the public sit. This Court again warned Ms. Daley to exit the courtroom (id. at 106). Ms. Daley responded "I am a member of the public" (id. at 107). This Court again warned Ms. Daley "you're out or you're in contempt" and stated "let me know when she is out" (id.). This Court again exited the courtroom into the robing room, Ms. Daley left the courtroom, and there was a pause in the proceedings. Again, no court officer was present at this time.

This Court then re-entered the courtroom and the parties again continued to argue the motion without Ms. Daley present. A court officer entered the courtroom and this Court stated to the officer "we had someone here, an attorney who was disruptive. I ordered her to leave and she came back and I ordered her to leave and she did" (id. at 108).

At the conclusion of oral argument this Court declined to render a decision on the motion, and ordered the parties to submit proposed findings of fact and conclusions of law stating "this is all based on documents and I will extend the same opportunity to Mr. Dessberg, and if Ms. Daley wants to do it as well, at least there is no opportunity for her to be contemptuous in my presence [*3]so she can do that as well" (id. at 113). The motion was then taken on submission and has since been decided upon the papers, including Ms. Daley's opposition.

A presiding Judge possesses the authority to govern the functioning of the court (Matter of Brostoff v Berkman, 170 AD2d 364, 365 [1st Dept 1991]). "Moreover, it is the Judge's responsibility to uphold order and decorum in the court" and "it is within the domain of the Judge to regulate what occurs in his or her courtroom" (id.).

An attorney is not relieved of his or her obligation to maintain a respectful attitude toward the court "by what he [or she] may regard as a deficiency in the conduct or ruling of a judge" (22 NYCRR 604.1 [d][7]). He or she must "uphold the honor and maintain the dignity of the profession" and "must avoid disorder or disruption in the courtroom, and he [or she] must maintain a respectful attitude toward the court" (id. at 604.1 [d][1]).

This Court acted appropriately in ordering Ms. Daley to exit the courtroom. Ms. Daley had failed to respect and recognize the rulings of this Court by continuing to stand and argue after she was given numerous opportunities (approximately 126 times) to make a clear and concise argument. She did not follow this Court's order to sit and refrain from further arguing. This Court concluded that she was out of control, ordered her to leave the courtroom whereupon she failed to exit when directed, continued to argue, and after finally leaving the courtroom, disobeyed this Court's order by re-entering. As aforesaid, all of the foregoing occurred in the absence of a Court Officer.

Under the NY Judiciary Law, which provides the statutory authority for recusal, "A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding to which he is a 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" (Judiciary Law § 14 [McKinney 2015]). No statutory or other basis for recusal has been alleged nor does this Court find any reason to recuse itself based on any grounds.

"In the absence of a violation of express statutory provisions, bias or prejudice or unworthy motive on the part of a Judge, unconnected with an interest in the controversy, will not be a cause for disqualification, unless shown to affect the result" (Matter of Johnson v Hornblass, 93 AD2d 732, 733 [1st Dept 1983]).

Ms. Daley argues that this Court's conduct has "tainted" the proceedings and thus a question is now raised as to whether or not the result in this case will be affected. She argues that this Court has developed a predisposed opinion of her client's member, Ben Suky, based on his prior testimony in this action. As a result, Ms. Daley argues, this Court must recuse based on Canon 2 of the Code of Judicial Conduct, which states "a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where...he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding" (id.).

The facts do not show that this Court's impartiality can be questioned. This Court was justified to order Ms. Daley out of the courtroom because of her disruptive conduct after she was afforded ample opportunity to argue her opposition as discussed above. Furthermore, no decisions were made affecting her client's interest when she was absent and any opinion that this Court may hold, if any, are strictly based on the record. As such, Ms. Daley fails to demonstrate that her client's due process rights were violated.

This Court has presided over the instant matter since 2014, and in so doing, has [*4]conducted numerous hearings and appearances, reviewed approximately 28 motions, including numerous legal briefs and exhibits, presided over 2 conferences and rendered appropriate opinions. At this point in the litigation, it would be wasteful to assign this matter to another judge, especially where no grounds for recusal has been met.

Thus, the request to stay all proceedings and motions in this action is denied. Further, the request to vacate all decisions heretofore made by this Court since on or about April 1, 2015 is denied. In addition, the request to stay all proceedings, until such time as defendants have the opportunity to perfect their appeal from this Court's decision with respect to Motion Sequence No. 18 and 22 is denied.

Accordingly, it is

ORDERED that defendant's 440 West 41st LLC motion to recuse this Court (Sequence No. 029) is denied in its entirety.