Newell v. City of New York ( 2023 )

Newell v City of New York (2023 NY Slip Op 06484)

Newell v City of New York

2023 NY Slip Op 06484

Decided on December 19, 2023

Appellate Division, First 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: December 19, 2023
Before: Kapnick, J.P., Kennedy, Rodriguez, Pitt-Burke, Rosado, JJ.

Index No. 21863/12E Appeal No. 1261 Case No. 2022-03973

[*1]Hector Newell, Plaintiff-Appellant,

v

The City of New York, et al., Defendants-Respondents.

G. Wesley Simpson PC, Brooklyn (G. Wesley Simpson of counsel), for appellant.

Sylvia O. Hinds-Radix, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.

Appeal from order, Supreme Court, Bronx County (Alicia Gerez, J.), entered on or about June 21, 2022, which denied plaintiff's motion for recusal pursuant to 22 NYCRR 100 and Judiciary Law Section 14, and, upon recusal, for vacatur of a prior order dated January 24, 2022, same court and Justice, and transfer of this matter to a different Justice, unanimously dismissed, without costs, as moot.

Courts are precluded from "considering questions which, although once live, have become moot by passage of time or change in circumstances" (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). Here, in Newell v City of New York (204 AD3d 574, 574 [1st Dept 2022]), this Court affirmed summary judgment dismissal of plaintiff's complaint, rejecting plaintiff's argument that the medical record produced by defendants was materially incomplete (id. at 575), the same allegation that formed the basis of plaintiff's undecided motion seeking spoliation sanctions against defendants. To the extent plaintiff still seeks determination of his spoliation motion, the issue has been rendered moot (see Kenney v City of New York, 74 AD3d 630, 630-631 [1st Dept 2010]). Nothing in the record supports plaintiff's allegation that the court displayed bias to warrant recusal or vacatur of the court's prior order denying plaintiff's motion for reargument and renewal with respect to the order awarding defendants summary judgment affirmed by this Court (see Newell at 574-575).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 19, 2023