State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 22, 2015 517444 

________________________________

ANDREW MOKAY et al.,

Respondents,

v

CONNIE MOKAY, MEMORANDUM AND ORDER

Defendant,

 and

FREDERICK J. NERONI,

Appellant.

________________________________

Calendar Date: November 12, 2014

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

Neroni Law Office, Delhi (Tatiana Neroni of counsel), for

appellant.

Harlem & Jervis, Oneonta (Richard A. Harlem of counsel),

for respondents.

__________

Egan Jr., J.

Appeal from an order of the Supreme Court (Dowd, J.),

entered June 17, 2013 in Delaware County, which, among other

things, denied defendant Frederick J. Neroni's motion for

recusal.

The relevant facts are more fully set forth in this Court's

prior decisions in this matter (111 AD3d 1175 [2013]; 67 AD3d

1210 [2009]). Briefly, defendant Frederick J. Neroni

(hereinafter defendant), a former attorney (see Matter of Neroni,

86 AD3d 710 [2011], appeal dismissed and lv denied 17 NY3d 851
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[2011]), represented Andrew Mokay Sr. (hereinafter decedent) in a

divorce action. In the context of that action, decedent entered

into an open-court stipulation in March 2006, wherein he agreed

that, upon his death, he would devise two particular parcels of

real property to his five children, plaintiffs Andrew Mokay,

Daniel Mokay, David Mokay, Patricia Knapp and Christine Reed

(hereinafter collectively referred to as plaintiffs). This

stipulation was incorporated, but not merged, into the April 2006

judgment of divorce.

Shortly thereafter, decedent and his close friend,

defendant Connie Mokay (hereinafter Mokay), consulted with

defendant as to whether the foregoing conveyances could be

circumvented. The trio concocted a plan whereby decedent and

Mokay would marry, and defendant would prepare deeds transferring

the subject parcels to decedent and Mokay as husband and wife. 

Following decedent and Mokay's marriage, defendant prepared and

recorded the relevant deeds in the Delaware County Clerk's office

in July 2006. Upon defendant's instruction, the deeds were

marked "Do Not Publish" to prevent notice of the transactions

from appearing in the local newspaper. Decedent died five months

later, and title to the parcels passed to Mokay by operation of

law.

When Mokay refused to convey the parcels, plaintiffs

commenced this action against Mokay and defendant alleging,

insofar as is relevant here, that defendant engaged in fraud and

collusion and, further, violated Judiciary Law § 487. After

decedent's estate was added as a party, various motions ensued

and, ultimately, Supreme Court (Fitzgerald, J.), among other

things, granted plaintiffs summary judgment against defendant as

to the foregoing causes of action. Additional motions and

appeals ensued and, in July 2012, defendant served a subpoena

duces tecum upon plaintiffs and their counsel, which plaintiffs

moved to quash, and sought to depose plaintiffs' expert witness. 

Thereafter, in March 2013, defendant sought, among other things,

the recusal of Justice Dowd, to whom this matter had been

assigned, and a declaration that Judiciary Law § 487 was

unconstitutional. Supreme Court (Dowd, J.) partially granted

plaintiffs' motions to quash the subpoenas and denied the

affirmative relief sought by defendant. Defendant now appeals.
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None of the arguments advanced by defendant warrant

extended discussion. As for the recusal/disqualification motion,

"[a]bsent a legal disqualification under Judiciary Law § 14,

which is not at issue here, a . . . judge is the sole arbiter of

recusal and his or her decision, which lies within the personal

conscience of the court, will not be disturbed absent an abuse of

discretion" (Gonzalez v L'Oreal USA, Inc., 92 AD3d 1158, 1159

[2012], lv dismissed 19 NY3d 874 [2012] [internal quotation marks

and citations omitted]; accord Matter of Adams v Bracci, 100 AD3d

1214, 1215 [2012]). Supreme Court explained – in detail – why it

felt that recusal was not warranted in this action, and we

discern no abuse of Supreme Court's considerable discretion in

that regard. Contrary to defendant's assertion, "the fact that a

judge issues a ruling that is not to a party's liking does not

demonstrate either bias or misconduct" (Gonzalez v L'Oreal USA,

Inc., 92 AD3d at 1160).1 Finally, we find no impropriety in the

manner in which this matter was assigned to Supreme Court in the

first instance (see 22 NYCRR 202.3 [c] [5]).

Nor are we persuaded that Supreme Court erred in partially

granting plaintiffs' motion to quash certain subpoenas duces

tecum – specifically, those subpoenas seeking plaintiffs'

individual tax returns since 2006, together with any applications

for public assistance made since that time. "Generally, the

standard to be applied on a motion to quash a subpoena duces

tecum is whether the requested information is utterly irrelevant

to any proper inquiry" (Hyatt v State of Cal. Franchise Tax Bd.,

105 AD3d 186, 201 [2013] [internal quotation marks and citation

omitted]; see Matter of Hogan v Cuomo, 67 AD3d 1144, 1145

[2009]). Upon reviewing the record, we are satisfied that

plaintiffs met their burden of demonstrating that the requested

documents were utterly irrelevant as to the issue of the damages

they allegedly sustained as a result of defendant's conduct. In

opposition, defendant did nothing more than assure Supreme Court

that the relevancy of such documents would become apparent at

trial. Under these circumstances, Supreme Court properly granted

1 Defendant has a documented history of seeking the

disqualification of jurists who have rendered unfavorable

decisions in this matter (see 111 AD3d at 1178; 67 AD3d at 1213).
-4- 517444 

plaintiffs' motion in this regard.2

As for defendant's challenge to the constitutionality of

Judiciary Law § 487, suffice it to say that we find defendant's

strained interpretation of the Court of Appeals' decision in

Amalfitano v Rosenberg (12 NY3d 8 [2009]) relative to the civil

penalties imposed under the statute to be unpersuasive. 

Judiciary Law § 487 provides, in relevant part, that "[a]n

attorney or counselor who . . . [i]s guilty of any deceit or

collusion, or consents to any deceit or collusion, with intent to

deceive the court or any party . . . [i]s guilty of a

misdemeanor, and in addition to the punishment prescribed

therefor by the penal law, he [or she] forfeits to the party

injured treble damages, to be recovered in a civil action." 

Despite defendant's insistence to the contrary, the Court of

Appeals has made clear that "[t]he operative language at issue –

guilty of any deceit – focuses on the attorney's intent to

deceive, not the deceit's success" (Amalfitano v Rosenberg, 12

NY3d at 14 [internal quotation marks omitted]). Accordingly,

Supreme Court's order is in all respects affirmed.

McCarthy, J.P., Devine and Clark, JJ., concur.

2 Although defendant also challenges Supreme Court's denial

of his motion to depose plaintiffs' expert, defendant failed to

include the underlying motion papers in the record on appeal. 

Accordingly, meaningful appellate review of this issue

essentially is impossible, and we do not address this issue (see

Matter of St. James Nursing Home v Axelrod, 135 AD2d 26, 30

[1988]; cf. Rubio-Modica v Modica, 100 AD3d 979, 979 [2012]). 
-5- 517444 

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court