Agora Gourmet Foods Inc. v. Edge

2021 NY Slip Op 32036(U)

AGORA GOURMET FOODS INC., Plaintiff. v. KALLIE EDGE, DIMITRIOUS VITALJOTIS, and VASILIOS GARGEROS, Defendants.

Motion Seq. Nos. 8 & 9

Index No. 60365/2018

Supreme Court, Westchester County

April 6, 2021

Unpublished Opinion

Motion Date: 2/5/2021

ZARrN & STEINMETZ By: Kate Roberts. Esq. Attorneys for Plaintiff

FINGER & FINGER, A PROFESSIONAL CORPORATION By: Carl L. Finger Esq. Attorneys for Defendant Kallie Edge

LAW OFFICE OF JONATHAN SAMUEL KLEIN By: Jonathan S. Klein, Esq Attorneys for Defendant Vasilios Gargeros

DAHAN PAMPALONE LLP By: David M. Dahan, Esq. Attorneys for Defendant Dimitrious Vitaliotis

DECISION & ORDER

HON GRETCHEN WALSH, J.S.C.

The following e-filed documents listed in NYSCEF by Document Numbers 333-366 and 380-383 were read on this motion by Defendants Kallie Edge ("Edge"), Dimitrious Vitaliotis ("Vitaliotis") and Vasilios Gargeros ("Gargeros") (collectively "Defendants") for an order pursuant to 22 NYCRR 100, 3 disqualifying this Court from this matter and transferring this case to another part or judge for remaining pre-trial and trial matters including the in limine branch of this motion, or, in the alternative, for an order pursuant to CPLR 3101(d) and Commercial Division Rule 13(c) (22 NYCRR 202.70) precluding Plaintiff Agora Gourmet Foods ("Plaintiff* or "Agora") from offering any expert testimony, reports and/or evidence at trial. Plaintiff opposes the motion. Upon the foregoing papers, and for the reasons set forth herein, the motion is granted in part and denied in part.

FACTUAL AND PROCEDURAL HISTORY

The factual and procedural background of this case is set forth in this Court's Decision and Order dated October 20. 2020 (the "Jury Demand Decision"), which is incorporated herein by reference, and which in turn incorporates this Court's Decision and Order dated August 28. 2020 (the "Summary Judgment Decision").

The Court initially set a trial date of November 9, 2020 but subsequently postponed the trial date to November 12.2020 due to Plaintiff s trial counsel's childcare issue. In its Jury Demand Decision, the Court granted Agora the right to withdraw its demand for a trial by jury contained in its Note of Issue, On October 28, 2020, with their appeal of the Jury Demand Decision to the Appellate Division, Second Department, Defendants also moved for a stay of trial pending the appeal. The Second Department granted a temporary stay of the trial pending a determination of the underlying motion. Thereafter, on December 11, 2020, the Appellate Division issued an order denying Defendants' motion for a stay of the trial pending appeal (Affirmation in Opposition of Kate Roberts, Esq. in Opposition dated December 31. 2020 ["Roberts Opp. Aff."], Ex. C), On November 25, 2020, Defendants filed this motion.

DISCUSSION

A. Defendants' Motion for Recusal

In support of their motion. Defendants submit: (1) a combined affirmation of Carl L. Finger. Esq.. David M. Dahan, Esq., and Jonathan S. Klein, Esq. dated November 25, 2020 ("Defs' Combined Aff."), together with its annexed exhibits; and (2) a memorandum of law dated November 25, 2020 ("Defs' Mem."), In opposition. Plaintiff submits: (1) the Roberts Opp. Aff, together with its annexed exhibits; and (2) a memorandum of law in opposition dated December 31. 2020 ("Plfs Opp. Mem."). In further support of Defendants' motion, Defendants submit a combined reply affirmation of Carl L. Finger, Esq., David M. Dahan, Esq., and Jonathan S. Klein, Esq. dated January 25, 2021, together with its annexed exhibits ("Defs' Combined Reply All."); and (2) a reply memorandum of law dated January 25, 2021 ("Reply Mem.").

In its motion, Defendants seek this Court's disqualification pursuant to 22 NYCRR 100.3(E)(I). Essentially Defendants contend that this Court should recuse itself because it "harbors an inherent bias against and antagonism towards Defendants" (Defs' Mem. at 3).

Section 100.3(E)(1) of the New York Codes. Rules and Regulations provides that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) (i) the judge has a personal bias or prejudice concerning a party ...." (22 NYCRR § 100.3[E][1 ]).

It is well settled that "[a]bsent a legal disqualification under Judiciary Law § 14, ^[1] the determination of a motion for recusal of the Justice presiding based on alleged impropriety, bias, or prejudice is within the discretion and personal conscience of the court" (Nationstar Mtge., LLC v Balducci. 165 A.D.3d 959, 960 [2d Dept 2018]; see also Matter of Grucci v Vilianti, 108 A.D.3d 626, 627 [2d Dept 2013]; People v Smith, 63 N.Y.2d 41, 68 [1984], cert denied 469 U.S. 1227 [1985]). "'Recusal, as a matter of due process, is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist' ... The denial of a recusal motion will constitute an improvident exercise of discretion only where the movant puts forth demonstrable proof of the judge's bias or prejudgment" (City of Yonkers v Yonkers Fire Fighters, Local 628, 175 A.D.3d 676, 678 [2d Dept 2019], Iv dismissed 34 N.Y.3d 1085 [2019]). "When there is no ground for recusal, recusal should not be ordered, especially when prejudice will result" (Silber v Silber, 84 A.D.3d 931 [2d Dept 2011]). In addition, "where ... a party inexplicitly withholds an allegation of bias until after the court adversely rules against it. denial of recusal motion is generally warranted and the courts' discretion in so ruling will not be disturbed" (Glatzer v Bear, Stearns & Co., 95 A.D.3d 707, 707 [1st Dept 2012]). Based on the foregoing precedent, simply because Defendants disagree with the rulings of this Court does not give rise to a basis for disqualification (see, e.g., Matter of Brooks v Greene, 153 A.D.3d 1621 [4th Dept 2017]; Board of Educ. of School Dist. of City of Buffalo v Pisa, 55 A.D.2d 128, 135 [4th Dept 1976]). Moreover, the timing of this motion, following numerous decisions issued by this Court and on the eve of trial, is highly suspect.

In support of their contention that the Court is biased and prejudiced against Defendants, Defendants first argue that the Court improperly advised Plaintiff of the claims it should bring by stating the following in a footnote in its Decision and Order dated May 2, 2019 (the ''Motion to Dismiss Decision"), which granted in part and denied in part, Defendants' motion to dismiss:

At present, based on the allegations set forth in the Amended Complaint and the Affidavit of George Paganis, Plaintiff appears to allege facts that might support a claim for fraudulent concealment as well as fraudulent misrepresentation. The Amended Complaint currently only contains a claim for fraudulent misrepresentation. If Plaintiff wishes to pursue a claim for fraudulent concealment, he may request a Commercial Division Rule 24 pre-motion conference and seek leave to amend the Amended Complaint.

(NYSCEF Doc. No. 335 [Motion to Dismiss Decision] at 18 n 3).

Defendants' position is without merit. Defendants moved to dismiss, in part, pursuant to CPLR 3211(a)(7). The legal standards to be applied in evaluating such a motion are well-settled. Where, as in this case, the plaintiff submits evidentiary material in opposition to defendants' motion, the Court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has slated one (Leon v Marline:, 84 N.Y.2d 83 [1994]; Simmons v Etlelsteiiu 32 A.D.3d 464 [2d Dept 2006]; Hartman v Morganstern, 28 A.D.3d 423 [2d Dept 2006]; Meyer v Guinta, 262 A.D.2d 463 [2d Dept 1999]). The Court was obligated to evaluate the evidence submitted by Plaintiff, here the Amended Complaint along with its attached exhibits, as well as the Affidavit of George Paganis (Plaintiffs principal), which was submitted in opposition to Defendants' motion to dismiss. In so doing, the Court was merely determining, as it is obligated to do pursuant to CPLR 3211(a)(7). that *[a]t present, based on the allegations set forth in the Amended Complaint and the Affidavit of George Paganis, Plaintiff appears to allege facts that might support a claim for fraudulent concealment" and in no way has "obviously already evaluated" the merits of Plaintiff s claim (Defs' Mem. at 5).^[2]

Defendants next contend that the Court exhibited bias by failing to dismiss the case despite finding that the then-Plaintiff, George Paganis, lacked standing arguing that "[f]here was absolutely no legal basis not to dismiss the case at that juncture" rather than permitting the amendment of the complaint and substitution of Agora (Defs' Mem, at 6-10). In its October 28, 2019 Decision and Order (the "Amendment Decision'"), however, the Court made clear that its decision that Agora had standing and that Plaintiff should be permitted to substitute Agora as Plaintiff was not made out of bias against Defendants, but rather was based on well-established legal principles (NYSCEF Doc. No. 336 [Amendment DecisionJ at 5-6; see also NYSCEF Doc. No. 335 [Motion to Dismiss Decision] at 16-17).^[3] In contrast. Defendants offer no law to the contrary and merely rely on their own conclusory argument that the Court "kept the case 'alive' for Plaintiffs benefit and to the detriment of Defendants" (Defs' Mem, at 5).

Third. Defendants argue that the Court improperly: (1) defaulted Defendants "as retribution for not consenting to Plaintiffs Second Amended Complaint"; and (2) required Defendants to compensate Plaintiff's counsel for her time in appearing at the conference on December 11, 2019 (the "December 2019 conference") at which counse...