DiPizio Constr. Co., Inc. v Erie Canal Harbor Dev. Corp., 2612/2013, 4/7/2016 (Walker, J.)

Motion for recusal; trial court is the sole arbiter of recusal; high standard of review required for recusal.

By Nora Boujida | Staff Member

Plaintiff, DiPizio Construction Company, Inc., and Defendant, Erie Canal Harbor Development Corporation, entered into a construction contract arising out of a public improvement project to redevelop the site of a former sports arena in Buffalo, New York. About one year after the parties entered into the contract, Defendant determined that the project was far behind schedule and, as a result, it sent Plaintiff a notice of intent to terminate. Five days later, Plaintiff commenced an action in which it sought, inter alia, a preliminary injunction barring Defendant from terminating. Plaintiff’s application for a preliminary injunction was denied, and Defendant later terminated the contract.

Plaintiff then sought a judgment declaring that Defendant’s notice of intent to terminate and ultimate termination of Plaintiff were nullities, and that the construction contract remains in full force and effect. As the proceeding moved forward, several rulings were made in favor of Defendant. Plaintiff argued that the following rulings of the court were biased and prejudiced: (1) the denial of Plaintiff’s request to depose one of Defendant’s Board members, (2) the denial of Plaintiff’s motion for summary judgment, (3) the order to seal all pre-trial discovery, (4) the refusal to allow Plaintiff to depose a potential intervenor pursuant to an amended list, (5) the denial of Plaintiff’s application for leave to renew the denial of its prior summary judgment motion, (6) the refusal to grant Plaintiff’s belated request to exceed a statutory page limit, (7) the decision that no oral argument is required, and (8) the refusal to permit Plaintiff to file sur-reply affidavits. Subsequent to the court’s multiple rulings, Plaintiff moved to recuse the court from all further proceedings in the matter.

Ultimately, the court denied Plaintiff’s motion to recuse on several grounds: (1) the court’s disqualification from the matter was not mandatory because no judge has an interest in the controversy or a blood relationship with a party, (2) the proceedings were fair and based upon an impartial consideration of the evidence, (3) Plaintiff did not exercise its right to appeal the court’s rulings made for Defendant, and (4) Plaintiff did not meet the high standard of review required for recusal. As to its first point, the court found that it ruled in Plaintiff’s favor on numerous occasions, including, but not limited to: the grant of partial summary judgment on two key claims in the contract action, and the denial of Defendant’s motion to dismiss two of Plaintiff’s claims in the defamation action. Regarding its third point, the court pointed out that if Plaintiff did not agree with the rulings made for Defendant, its remedy was to appeal the determinations; Plaintiff failed to do so on multiple occasions. Based on the foregoing, the court held the rulings did not meet the high standard of review for recusal. Accordingly, Plaintiff’s motion to recuse the court from all further proceedings was denied.

DiPizio Constr. Co., Inc. v Erie Canal Harbor Dev. Corp., 2612/2013, 4/7/2016 (Walker, J.).

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