January 4, 1990
Appeal from the Civil Court, New York County (Louis York, J.).
This appeal arises out of approximately 65 nonpayment proceedings brought against residential tenants. The proceedings were instituted in October 1987 and a consolidated trial began in December 1988. On February 1, 1989, due to the outrageous conduct of petitioner's trial counsel, the court disqualified him. The court noted that it might be influenced by counsel's personality, which might prejudice counsel's client. Up to this point, however, as is undisputed, no decisions or rulings had been so influenced.
Petitioner and his trial counsel thereafter brought a CPLR article 78 proceeding seeking reinstatement of counsel and disqualification of the Trial Judge. The petition was granted only to the extent of reinstating trial counsel. Once the trial resumed, petitioner moved the court to recuse itself. The court denied the application and stated that it could be impartial toward the landlord. Petitioner appealed to the Appellate Term and a divided panel affirmed the trial court's determination. We affirm.
It is not enough for petitioner to request recusal based on the fact that the trial court's state of mind toward petitioner's attorney might affect future proceedings. Unless the moving party can point to an actual ruling which demonstrates bias, which petitioner cannot do here, an appellate court will not substitute its discretion for that of the trial court. (See, Matter of Katz v. Denzer, 70 A.D.2d 548.)
To allow trial counsel's argumentative tactics, which we view as an obvious effort to provoke a disqualification and resultant mistrial, to succeed, would be to reward him for his wrongdoing and grant him a "`license under which the judge would serve at [his] will.'" (People v. Diaz, 130 Misc.2d 1024, 1028, quoting Davis v. Board of School Commrs., 517 F.2d 1044, 1050, cert denied 425 U.S. 944.)
Concur — Sullivan, J.P., Ross, Carro, Milonas and Rosenberger, JJ.