SUPREME COURT OF THE STATE OF XXX
COUNTY OF QUEENS
BANK OF XXX, NA, SUCCESSOR
BY MERGER TO BAC HOME LOANS
SERVICING, et al.
Plaintiffs
-against-
XXX, et al.
Defendants
Index No. XXX
MOTION TO RECUSE JUDGE
COMES NOW Defendant XXXX, pro se, and files this Motion to
Recuse the Judge pursuant to 22 N.Y.C.R.R. § 700.5(c). In support thereof, the Defendant states
as follows:
For want of jurisdiction, the Judge lacks standing to preside over the instant case
According to 22 N.Y.C.R.R. § 700.5(c), “[a] judge before whom a case is moved shall
preside at such trial unless he is satisfied, upon challenge or sua sponte, that he is unable to serve
with complete impartiality, in fact or appearance, with regard to the matter at issue or the parties
involved.” It follows; a judge shall recuse himself if he is unable to serve with complete
impartiality, in fact, or appearance. See Robert Marini Bldr. v. Rao, 263 A.D.2d 846, 848 [3rd
Dept. 1999].
Further, recusal, as a matter of due process, is required where there is a clash in judicial
roles, or where a clash in judicial roles is seen to exist. See People v. Alomar, 93 N.Y.2d 239,
246 [1999].
Interestingly, “[j]udges should not wait until litigants are forced into a position of either
making the motion or abandoning the best interests of the client”. See People v. T & C Design,
Inc., 178 Misc. 2d 971 [1998].
According to Melo v. U.S., 505 F2d 1026, the law requires proof of jurisdiction to appear
on the record of the administrative agency and all administrative proceedings. Further, once
jurisdiction has been challenged, the Court should halt all further proceedings and stay all orders
that it has issued.
In the instant action, Defendant filed a jurisdictional challenge to this Court. In the
jurisdictional challenge, the Defendant averred, inter alia, that the Plaintiffs have failed to
provide any evidence or material facts as to the jurisdiction of the 11 th DISTRICT, SUPREME
COURT OF THE STATE OF XXXX COUNTY OF XXXX to the instant case.
Therefore, by maintaining this action, and permitting further prosecution of this case in this
Court, the Defendant asserts that this Court is usurping authority beyond its jurisdiction.
Defendant further declares that he is not in receipt of any evidence or material fact that
the Judge(s) of the instant court have administered the proper oath of state judicial officers,
which is required to be taken as set out in 1 Stat. 23.
Defendant rehashes his argument and states that once jurisdiction is challenged, the court
has no authority to issue decisions on merits and should rather dismiss the action. XXX
505 F2d. 1026. Further, a judgment rendered by a court without jurisdiction over the defendant is
null and void. It is a nullity. Notably, if jurisdiction does not exist, it cannot justify conviction or
judgment.
It follows; if a court that lacks jurisdiction, to proceed would be in excess of jurisdiction,
which is as well FATAL to the State’s cause. See In re FNB, 152 F 64.
WHEREFORE, the foregoing considered, Defendant maintains that this Court lacks
jurisdiction over the case, and for that reason, the presiding Judge should recuse himself.
Respectfully submitted,
Dated: _______________ By:
___________________________
XXX
CERTIFICATE OF MAILING
I, XXX, certified on this ______day of ________ XXX, I deposited a
true copy of the above to the Plaintiffs, and other parties of the case, by placing the documents
with prepaid postage in the United States mailbox address(es):
[ENTER ADDRESSES]
By:
___________________________
XXX
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