Matter of John II. v. Kristen JJ.

Matter of John II. v Kristen JJ. (2022 NY Slip Op 05132) Matter of John II. v Kristen JJ. 2022 NY Slip Op 05132 Decided on September 8, 2022 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered:September 8, 2022 533402 [*1]In the Matter of John II., Appellant, vKristen JJ., Respondent. Calendar Date:September 7, 2022 Before:Clark, J.P., Aarons, Pritzker, Reynolds Fitzgerald and Ceresia, JJ. Todd G. Monahan, Schenectady, for appellant. Ruchelman & Cruikshank, PC, Plattsburgh (Allan B. Cruikshank Jr. of counsel), for respondent. Cheryl Maxwell, Plattsburgh, attorney for the children. Clark, J.P. Appeal from an order of the Family Court of Clinton County (Keith M. Bruno, J.), entered April 9, 2021, which, in a proceeding pursuant to Family Ct Act article 6, granted respondent's motion to dismiss the petition at the close of petitioner's proof. Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of three children (born in 2008, 2009 and 2010). Pursuant to a November 2012 order issued upon the father's default, the mother was granted sole legal and physical custody of the children. Subsequently, in June 2017, the parties entered into an agreement through which the mother retained sole legal and physical custody of the children, and the father was "entitled to weekly supervised visitation as arranged with and supervised by the Child Care Coordinating Council of North Country—Family Connections." In July 2020, the father filed the instant petition through which he sought a modification of the June 2017 order. He also sought Family Court's disqualification, noting that the November 2012 order listed "Keith M. Bruno" as the mother's counsel in those proceedings. Family Court denied the father's disqualification motions.[FN1] Following a fact-finding hearing where the mother was the only witness, Family Court dismissed the father's petition for failure to establish a prima facie case. The father appeals. Initially, the father argues that Family Court erred in denying his motion to have the court be disqualified from the matter.[FN2] We agree. "A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel" (Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1] [b] [i]). "This prohibition is absolute and establishes a bright-line disqualification rule" (Matter of Gordon, 192 AD3d 1206, 1207 [3d Dept 2021] [internal quotation marks and citation omitted] [addressing the mirror directive codified in Judiciary Law § 17 prohibiting judges who return to practice from appearing in matters over which they presided]). Although neither the Judiciary Law nor the Rules Governing Judicial Conduct define "an action, claim, matter, motion or proceeding" (Judiciary Law § 14), Black's Law Dictionary defines a "claim" as "[t]he assertion of an existing right . . . to an equitable remedy, even …

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