Antolini v. McCloskey et al

Filing 247

OPINION AND ORDER. Plaintiff's motion for recusal is DENIED. (Signed by Magistrate Judge Stewart D. Aaron on 10/6/2021) (Aaron, Stewart)

Case 1:19-cv-09038-GBD-SDA Document 247 Filed 10/06/21 Page 1 of 21

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

10/6/2021

Dino Antolini,
Plaintiff,

1:19-cv-09038 (GBD) (SDA)

-against-

OPINION AND ORDER

Amy McCloskey, et al.,
Defendants.
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE:
Pending before the Court is a motion for recusal filed on behalf of Plaintiff Dino Antolini
(“Plaintiff” or “Antolini”). 1 For the reasons set forth below, Plaintiff’s motion is DENIED.
BACKGROUND
I.

Early Procedural History
Plaintiff commenced this action on September 28, 2019, asserting claims under the

Americans with Disabilities Act, 42 U.S.C. § 12182(a) (the “ADA”); the New York State Human
Rights Law, N.Y. Exec. Law § 296(2)(a); the New York City Human Rights Law, N.Y.C. Admin. Code
§ 8-107(4); and the New York State Civil Rights Law, N.Y. Civ. Rts. Law §§ 40-c & 40-d, as well as
a claim for common law negligence. (See Compl., ECF No. 1.) Plaintiff, a wheelchair user, alleges

Plaintiff’s notice of motion for recusal previously was filed at ECF Nos. 219 and 225, but the Clerk of
Court terminated those documents due to filing errors. The notice of motion has yet to be properly filed.
Plaintiff has not filed a memorandum of law, as required by Local Civil Rule 6.1(b). The document
containing Plaintiff’s substantive arguments in support of recusal is the Declaration of Stuart H.
Finkelstein, dated August 24, 2021 (ECF No. 231, cited herein as “Finkelstein 8/24/21 Decl.”). Finkelstein’s
August 24 Declaration, which does not have page numbers affixed to it, contains three different
paragraphs that are numbered 10. The Court will cite herein those paragraphs as 10[1], 10[2] and 10[3],
respectively. ECF No. 231-1 is the Declaration of Dino Antolini, dated August 23, 2021 (cited herein as
“Antolini 8/23/21 Decl.”).
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that Defendants failed to make their place of public accommodation, a cocktail bar named
Madame X, accessible to persons with disabilities. (Id. ¶¶ 2, 6.)
On May 5, 2020, District Judge George B. Daniels entered an Order setting a discovery
schedule and providing that depositions must be conducted and completed between October 2,
2020 and December 2, 2020, and that all fact discovery must be completed by December 31,
2020. (Order, ECF No. 33.) On June 1, 2020, Judge Daniels referred this action to me for general
pretrial purposes, as well as for a report and recommendation on any dispositive motions. (Order
of Ref., ECF No. 36.) On June 10, 2020, I entered an Order providing, among other things, that
the parties could adjust the interim deadlines set forth in Judge Daniels’s May 5, 2020 Order, as
long as all discovery was completed by December 31, 2020. (Order, ECF No. 38.) Thereafter, the
Court heard and resolved several discovery disputes between the parties. 2
II.

Defendants’ Emergency Motion
On August 4, 2020, Defendants filed an Emergency Letter Motion “requesting a framed-

issue hearing for the examination of Plaintiff, under oath, on the subject of whether Plaintiff
knowingly authorized his purported attorney to commence the instant action.” 3 (Defs.’ 8/4/20
Ltr. Mot., ECF No. 60.) Defendants’ Emergency Letter Motion was predicated on criminal charges
filed in the Southern District of New York against Plaintiff’s attorney of record, Stuart H.
Finkelstein (“Finkelstein”), “in connection with his ‘stealing’ the identity of two individuals to file

See, e.g., Antolini v. McCloskey, 335 F.R.D. 361 (S.D.N.Y. 2020) (granting in part and denying in part
Defendants’ motion to compel; denying Defendants’ request for sanctions); Antolini v. McCloskey, No. 19CV-09038 (GBD) (SDA), 2020 WL 5089443 (S.D.N.Y. Aug. 28, 2020) (resolving various discovery disputes).
2

Defendants earlier had raised this subject, and related concerns, in a letter to Judge Daniels dated May
4, 2020 (Defs.’ 5/4/20 Ltr., ECF No. 32, at 2-3), and again in a June 10, 2020 hearing before me. (6/10/20
Tr., ECF No. 45, at 11-12, 17-18; see also id. at 5-6, 8-11.)
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hundreds of fraudulent lawsuits pursuant to the [ADA] that those individuals never authorized.”
(Id. at 1.) Defendants attached as Exhibit A to their Emergency Motion an arrest warrant and
criminal complaint (the “Criminal Complaint”) against Finkelstein issued by the U.S. Attorney’s
Office for the Southern District of New York; the Criminal Complaint asserts counts of Mail Fraud,
Aggravated Identity Theft, Obstruction of Justice and False Declarations Before A Court. (ECF No.
60-1; accord Compl., U.S. v. Finkelstein, No. 21-CR-00217, ECF No. 1. 4) Defendants attached as
Exhibit E to their Emergency Motion an Affidavit of Brad Hamilton, who helped Defendant Amy
McCloskey open Madame X in 1997. (See Hamilton Aff., ECF No. 60-5, ¶ 1.) Mr. Hamilton attested
that he had spoken with Plaintiff on November 23, 2019, and that during that conversation
Plaintiff had stated, among other things, that he had never been to Madame X, that he had
stopped drinking alcohol approximately two years before his alleged visit to Madame X (which,
Mr. Hamilton attested, is a cocktail bar that does not serve food), that he never agreed to serve
as the sole plaintiff in any lawsuit, and that he “felt he had been ‘scammed’ by his attorney.” (See
id. ¶¶ 4, 12-15.)
In opposition to Defendants’ Emergency Letter Motion, Finkelstein filed a letter response
denying the existence of any “emergency” and opining that, were Defendants’ concern sincere,
their appropriate course of action was to take Plaintiff’s deposition: “Maybe defendants’ counsel
forgot, but under the Federal Rules of Civil Procedure, they are entitled to a deposition of my
client, as I am of theirs. Yet, they chose to deceitfully hold this nonsense in their back pocket, just
to stall, delay, and harass.” (Pl.’s 8/5/20 Ltr., ECF No. 61, at 2; see also Pl.’s Resp. to Defs.’ First
On or about November 19, 2019, Finkelstein was arrested based on the Criminal Complaint. In March
2021, an indictment against Finkelstein was issued by a Grand Jury. (See Indictment, 21-CR-00217, ECF
No. 35.) Criminal proceedings remain pending against Finkelstein in this Court.

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Set of Interrogs., ECF No. 60-3, at 4-5 (indicating that interrogatory asking for description of
Plaintiff’s “alleged visit to [Madame X]” was “to be responded to at Plaintiff’s deposition”).)
Finkelstein’s letter also stated that “[t]he most powerful U.S. Attorney’s Office in the country
subpoenaed and spoke directly [with Plaintiff] and rightfully, nothing came of it.” (Pl.’s 8/5/20 Ltr.
at 2 (emphases in original).) Several months later, however, Finkelstein filed a letter admitting
that this statement was false. (See Pl.’s 11/23/20 Ltr., ECF No. 116 (“I have now come to learn
that the US Attorney’s Office did not speak with [Plaintiff].”).)
On August 7, 2020, the Court denied Defendants’ Emergency Letter Motion, stating, in
part: “There is no basis in the Federal Rules of Civil Procedure for holding [a framed-issue]
hearing. Nor is there any emergency. When Defendants take the deposition of Plaintiff, they are
free to ask questions regarding whether Plaintiff authorized Mr. Finkelstein to commence this
action and/or regarding Plaintiff’s interrogatory responses.” (8/7/20 Order, ECF No. 63.)
III.

Plaintiff’s Deposition Is Repeatedly Postponed, Then Unilaterally Terminated
By cover email dated September 18, 2020, Defendants noticed Plaintiff’s deposition for

October 28, 2020. (See Defs.’ 10/26/20 Mot. to Compel, Ex. D, ECF No. 105-4, at 3.) On October
21, in a one-sentence email, Plaintiff unilaterally cancelled that deposition. (See id. at 2 (“We will
be unable to attend.”).) In light of this and other alleged delays by Plaintiff, on December 1, 2020,
Defendants requested a ninety-day extension of the December 2, 2020 deadline for depositions
and the December 31, 2020 deadline for all discovery. (Defs.’ 12/1/20 Ltr. Mot., ECF No. 121.)
Plaintiff vehemently opposed Defendants’ request on the grounds that Defendants had not
pursued discovery diligently; however, Plaintiff did not raise any issue with Plaintiff’s ability to sit
for a deposition. (Pl.’s 12/4/20 Ltr. Resp., ECF No. 123.) On December 8, 2020, the Court granted
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in part and denied in part Defendants’ motion, extending the deposition and discovery deadlines
to February 19, 2021, and March 12, 2021, respectively. (12/8/20 Order, ECF No. 124.)
On January 19, 2021, Defendants noticed Plaintiff’s deposition for February 11, 2021. (See
Defs.’ 2/10/21 Ltr. Mot. to Compel, Ex. A, ECF No. 140-1, at 3.) On January 27, 2021, Plaintiff
objected to that notice of deposition. (Id.) Plaintiff then declined to respond to five emails from
Defendants, sent between January 29, 2021 and February 1, 2021, requesting that Plaintiff
confirm his attendance at the February 11 deposition or propose alternate dates. (Id.) During a
February 4, 2021 meet and conferral call, Finkelstein told Defendants’ counsel that Plaintiff, who
“suffers from Bell’s Palsy on one side of his mouth,” had “now been afflicted on the other side of
his mouth” such that “his speech is almost unintelligible,” and he would be “unable to verbally
participate in his deposition.” (Pl.’s 2/16/21 Ltr., ECF No. 141, at 1.) Plaintiff proposed that
Plaintiff’s deposition proceed on February 11, 2021 by written questions, pursuant to Rule 31 of
the Federal Rules of Civil Procedure. 5 (Id.)
In light of the timing and unusual nature of Finkelstein’s representation regarding
Plaintiff’s inability to sit for an oral deposition, as well as the outstanding concerns regarding
Finkelstein’s role in the litigation, the Court directed each of Plaintiff and Finkelstein to submit
an affidavit or declaration “that set forth (a) the precise nature of the affliction(s) to Plaintiff’s
mouth; (b) the onset date(s) of Plaintiff’s mouth-related affliction(s); (c) the name, address and

As a general rule, a deposition by written questions is inappropriate for an adverse witness. See, e.g.,
Jones v. Hollenback, No. 05-CV-00148 (OWW) (DLB), 2006 WL 8458647, at *4 (E.D. Cal. Feb. 8, 2006) (“The
written question format provided by Rule 31 does not permit the follow up questions necessary when
dealing with an adverse witness nor does it allow the attorney to observe the demeanor of the witness to
assess her credibility and presentation. Indeed, depositions upon written questions are likely only
appropriate when dealing with neutral or ‘friendly’ witnesses, clearly not the situation before the court.”).
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telephone number for Plaintiff’s treating physician so that testimony may be obtained from such
physician, as needed; and (d) the names and case numbers for any litigation where Plaintiff gave
deposition testimony, or testified under oath in a court proceeding, and the date(s) of such
testimony.” (2/17/21 Order, ECF No. 142, ¶ 1.) In addition, the Court scheduled a video hearing
for March 2, 2021 to address Plaintiff’s deposition and directed Plaintiff himself to appear. 6 (See
id. ¶ 2.)
The March 2, 2021 video hearing took place as scheduled. (See 3/2/21 Tr., ECF No. 195.)
Plaintiff appeared from his home, with the assistance of his grandson, who operated the
computer and logged Plaintiff on to the Microsoft Teams session. (See id. at 14.) During the
hearing, the Court made inquiries of Plaintiff in an effort to determine whether he was able to
participate in a remote live deposition, either verbally or by typing or handwriting responses to
questions, notwithstanding his medical condition. (See id. at 2-3, 12-13.) Plaintiff was able to
engage in verbal conversation with the Court, but he asserted that, due to his medical condition,
he was “not really” able to type and his “handwriting is horrible.” (See id. at 3.) At the conclusion
of the hearing, the Court stated: “Mr. Antolini, from [the Court’s] observation of him and from
the colloquy [that has] occurred, does have, in fact, difficulty communicating. Having said that,
the Court is satisfied that Mr. Antolini, under oath, can answer questions that are properly posed
to him at his deposition in this case.” (See id. at 23.) Thus, in a written Order issued shortly after

On February 22, 2021, Plaintiff and Finkelstein submitted declarations in response to the Court’s
February 17, 2021 Order. (See Antolini 2/22/21 Decl., ECF No. 144; Finkelstein 2/22/21 Decl., ECF No. 1441.) Both Declarations address Plaintiff’s medical condition (indicating that he began experiencing Bell’s
Palsy symptoms on “the other side” of his mouth on December 27, 2020) and state that Plaintiff had
“attended and participated in settlement conferences” in three cases in this Court, listing the dates of
such conferences. (See Antolini 2/22/21 Decl.; Finkelstein 2/22/21 Decl.)

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the hearing (the “March 2 Order”), the Court ordered that Plaintiff’s remote live deposition
proceed, commencing on April 19, 2021. (See 3/2/21 Order, ECF No. 150, ¶ 2.) The Court further
ordered that “there shall be no objections at Plaintiff’s deposition other than objections to form
and objections on the basis of privilege, and only in the case of the latter may Plaintiff decline to
answer the question posed.” (Id. ¶ 3; see also 3/2/21 Tr. at 12, 22-23.)
Plaintiff’s deposition by means of video teleconferencing commenced as ordered on April
19, 2021, shortly after 10:00 a.m. (4/19/21 Dep. Tr., ECF No. 167-1, at 4.) The deposition was
contentious. Less than twenty-three minutes in (see id. at 25, 29), Defendants’ counsel, Eunon
Jason Mizrahi (“Mizrahi”), called the Court’s chambers complaining of Plaintiff’s counsel’s
“improper speaking objections[,] . . . repeated instructions and coaching.” 7 (Id. at 36-38.) After
offering Finkelstein the opportunity to be heard on the issue, the Court reiterated to him its
instructions in the March 2 Order: “I'm going to be crystal clear. You may object to the form of a
question or object—state any objection you want to any question with the word [‘]objection.[’]
You are not permitted to instruct the witness not to answer except on privilege grounds or give
any other instructions or speak any other words than the word [‘]objection.[’]” 8 (Id. at 40.)

The transcript confirms that Finkelstein had made several speaking objections in response to Defendants’
counsel’s questions regarding Plaintiff’s medications and regarding other lawsuits Plaintiff had been
involved in. (See, e.g., 4/19/21 Dep. Tr. at 22, 33.)
7

The Court previously had given a similar directive in connection with Defendants’ depositions during a
call received from the parties in the midst of Defendants’ depositions. (See 3/2/21 Tr. at 22-23.) While
Finkelstein insinuates that my prefacing this directive during Plaintiff’s April 19 deposition with the
comment that “you already know I’m going to rule” is indicative of an anti-Plaintiff bias (see Finkelstein
8/24/21 Decl. at 10), in truth it is indicative only of the fact that I already had addressed the same issue
several times before (during Defendants’ depositions, during the March 2, 2021 hearing and in the March
2 Order). (See 3/2/21 Tr. at 12, 22-23; 3/2/21 Order ¶ 3.)
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Shortly after this first call concluded, Mizrahi called the Court’s chambers a second time,
complaining that “less than one minute after we hung up,” he was “already dealing with the same
issue again.” (4/19/21 Dep. Tr. at 48.) After the Court Reporter read back Mizrahi’s prior question
and Finkelstein’s speaking objection in response thereto, the Court admonished Finkelstein for
ignoring its orders regarding speaking objections and put a finer point on its instructions: “If you
continue to make speaking objections, there will be financial consequences associated with it.”
(Id. at 49-53.)
As reflected in the April 19 transcript, Finkelstein continued to make speaking objections
throughout Plaintiff’s deposition. (See, e.g., 4/19/21 Dep. Tr. at 64, 120, 154, 158, 164-65.)
Finkelstein did not, however, threaten to terminate the deposition or move for a protective order
prior to approximately 3:00 p.m., when Mizrahi began to question Plaintiff about the Criminal
Complaint filed against Finkelstein in this Court. At that point, Finkelstein abruptly and
unilaterally terminated the deposition. (See 4/19/21 Dep. Tr. at 272‐82 (“If you don’t get [an
image of the Criminal Complaint] off the screen, and we're not talking about [the Criminal
Complaint] either, this -- this deposition will be over. It will be cancelled. It will be terminated.”).)
In a letter filed with the Court later that same day, Finkelstein stated that Defendant “still
ha[d] three hours left for questioning and [Plaintiff] is ready, willing and able to continue with his
deposition.” (Pl.’s 4/19/21 Ltr., ECF No. 158.)
IV.

The Aftermath And Rescheduling Of Plaintiff’s Terminated Deposition
On May 6, 2021, the Court ordered that Finkelstein show cause why he should not be

sanctioned, pursuant to Rules 16(f) and 37(b)(2), 28 U.S.C. § 1927 and/or the inherent powers of

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the Court, for his violations of the Court’s March 2 Order and of the Court’s rulings made during
Plaintiff’s April 19, 2021 deposition. (Order to Show Cause (“OTSC”), ECF No. 169.)
On June 7, 2021, Plaintiff filed a motion for sanctions against Mizrahi for his conduct at
Plaintiff’s deposition. Plaintiff’s motion sought, among other things, to terminate his deposition
and to strike the April 19, 2021 transcript from the docket. (See Pl.’s 6/7/21 Mot., ECF No. 177.)
On June 11, 2021—a day after his twice-extended deadline had passed— Finkelstein filed
his response to the OTSC. (See Finkelstein’s 6/11/21 Mem., ECF No. 180; Finkelstein 6/11/21 Aff.,
ECF No. 180-1.) Finkelstein’s response to the OTSC essentially made three points—i.e., that he
did not violate any Court Order; that, even if he did, his conduct was substantially justified; and
that, if the Court finds that he violated its Orders, “any sanction should not be unfair or
disproportionately high.” (See Finkelstein’s 6/11/21 Mem. at 6-17.) Defendants filed a
memorandum and declaration in response to Finkelstein’s submissions on June 18, 2021. (Defs.’
6/18/21 Mem., ECF No. 182; Mizrahi 6/18/21 Decl., ECF No. 183.)
In an Order, dated June 19, 2021, the Court found it “clear that Finkelstein violated the
Court’s March 2, 2021 Order, as well as the Court’s rulings made during Plaintiff’s deposition,”
and indicated that it would impose sanctions on Finkelstein. (6/19/21 Order, ECF No. 184, at 2
(citation omitted).) However, the Court deferred the determination and imposition of those
sanctions, stating that it would “base the extent and/or amount of such sanctions on the totality
of Finkelstein’s conduct during Plaintiff’s deposition, which remains open.” (Id.) The Order also
denied without prejudice that portion of Plaintiff’s motion that sought sanctions against Mizrahi
for his conduct during Plaintiff’s deposition and stated that Plaintiff could file a motion for
sanctions after his deposition had completed, based on Mizrahi’s conduct at the entire
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deposition. (See id. at 4.) Finding no basis to terminate Plaintiff’s deposition, the Court ordered
that the deposition be concluded no later than July 23, 2021. (See id. at 5.)
On June 25, 2021, Defendants noticed Plaintiff’s continued deposition by means of video
teleconferencing for Friday, July 9, 2021. (Mizrahi 6/25/21 Email, ECF No. 190-1.) On July 7, 2021,
having failed to confirm Plaintiff’s attendance until ordered by the Court to do so (see 7/7/21
Order, ECF No. 191), Plaintiff’s counsel indicated that Plaintiff would be unable to sit for his
continued deposition on July 9, but that he was available on July 22 or 23. (See Pl.’s 7/7/21 Ltr.,
ECF No. 192.) After Mizrahi indicated that Defendants were available on July 23 (see Defs.’
7/12/21 Ltr., ECF No. 194), the Court entered an Order scheduling the continuation of Plaintiff’s
deposition for 10:00 a.m. on that date. (7/13/21 Order, ECF No. 197.)
On July 22, 2021, nine days after the Court ordered that Plaintiff’s deposition be
continued on July 23, and one day prior to that Court-ordered continuation date, Finkelstein filed
a letter indicating that Plaintiff could not go forward with his deposition the following day. (Pl.’s
7/22/21 Ltr. #1, ECF No. 200.) Finkelstein’s letter stated that (1) Plaintiff’s wife had previously
had staples implanted for a broken arm, and Plaintiff would be going with her to Bellevue Hospital
the next day for an appointment to have the staples removed, and (2) Plaintiff’s grandson had
gone back to Italy and thus would not be able to assist Plaintiff with “the video aspect of the
deposition.” (See id.) The letter also stated that Plaintiff (but not his grandson) would be available
”late in the afternoon” on July 23, but requested either that the remainder of the deposition
occur via telephone or that the Court grant “a very brief” extension. (See id.)
Later that day, having learned that Defendants did not consent to conducting Plaintiff’s
continued deposition by telephone (see Defs.’ 7/22/21 Ltr., ECF No. 203, at 2), the Court entered
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an Order scheduling a telephone conference for 3:00 p.m. on July 23, 2021. (7/22/21 Order #2,
ECF No. 204.) The Court’s Order provided that “Plaintiff shall participate,” indicating that he
would be placed under oath and that the Court would address, among other things, “the bona
fides of [his] belated requests to adjourn the Court-ordered continuation of his deposition.” (Id.)
The Court set the time of the conference for 3:00 p.m. because Finkelstein had stated that
Plaintiff would be available ”late in the afternoon” on July 23. (See Pl.’s 7/22/21 Ltr. #1; 7/23/21
Tr., ECF No. 217, at 9.)
Plaintiff was aware that the Court had ordered him to appear for a telephone conference
at 3:00 p.m. on July 23 (see 7/23/21 Tr. at 5), and he did not seek to adjourn that conference
based upon his unavailability. Nevertheless, Plaintiff failed to appear for the conference. (See id.)
Thereafter, the Court entered an Order directing Plaintiff to appear for a telephone conference
on August 4, 2021. (7/23/21 Order, ECF No. 205.)
The Court held a telephone conference on August 4, 2021 at which Plaintiff appeared.
(See 8/4/21 Tr., ECF No. 215.) Plaintiff stated under oath that his wife had broken her arm in June
2021 and that he accompanied her to the hospital on July 23 because she was “afraid” and
“nervous.” (8/4/21 Tr. at 7-9.) Plaintiff candidly admitted that he was “aware [that he was]
supposed to be at a [court-ordered] deposition, and [he] chose to go with [his] wife to Bellevue
[Hospital] instead.” (See id. at 8-9.) With respect to his grandson, who had assisted him with his
computer during his prior deposition, Plaintiff testified that he had left for Italy at the beginning
of July. (See id. at 9.)
Following the conference, the Court entered an Order requiring that, no later than
Wednesday, August 11, 2021, Plaintiff and his counsel (1) make the arrangements necessary to
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enable Plaintiff to participate in his continued deposition by video, and (2) file a letter stating the
arrangements made and providing three weekdays between August 16 and August 25 when
Plaintiff would be available for that continued deposition. (8/4/21 Order, ECF No. 208.) The
August 4 Order stated that if Plaintiff failed to timely comply with the Order in all respects, the
Court would recommend that this case be dismissed for failure to obey discovery orders pursuant
to Federal Rule of Civil Procedure 37(b) and/or failure to prosecute pursuant to Federal Rule of
Civil Procedure 41(b). (See id.)
In two letters dated August 10, 2021, Finkelstein stated that he and Plaintiff were
available to continue Plaintiff’s deposition only on August 25, 26 or 27. (See Pl.’s 8/10/21 Ltr. #1,
ECF No. 209; Pl.’s 8/10/21 Ltr. #2, ECF No. 210.) Neither letter stated the arrangements made to
enable Plaintiff to participate in his continued deposition by video. In a letter response, dated
August 12, 2021, Mizrahi urged the Court to recommend dismissal of the case because
Finkelstein’s letter failed to comply with the August 4 Order in all respects, but also stated that
Mizrahi was available to continue Plaintiff’s deposition on August 26, 2021 and sought
confirmation that appropriate arrangements had been made. (See Defs.’ 8/12/21 Ltr., ECF No.
212.) On August 12, 2021, Finkelstein filed a letter stating the Plaintiff’s family members would
be “in town and staying with him,” such that “appropriate means and accommodations” had
been made “via remote zoom technology.” (See Pl.’s 8/12/21 Ltr., ECF No. 213.) By Order, dated
August 12, 2021, the Court directed that Plaintiff's continued deposition proceed via video on
Thursday, August 26, 2021, starting at 11:00 a.m. (8/12/21 Order, ECF No. 214.)

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V.

Plaintiff’s Motion For Recusal
On August 24, 2021, two days before Plaintiff’s continued deposition was to be taken, and

while the issue of the extent and/or amount of the sanctions to be imposed against Finkelstein
remained outstanding, Plaintiff filed the instant motion for recusal pursuant to 28 U.S.C. §§ 144
and 455. (See Finkelstein 8/24/21 Decl. ¶¶ 10[2], 14-16.)
Plaintiff’s basis for the pending recusal motion is that the Court has shown bias and
prejudice against both Plaintiff and Finkelstein. (See Finkelstein 8/24/21 Decl. ¶ 3.) In his sworn
Declaration in support of recusal, Finkelstein asserts that my Orders “throughout the docket
provide proof” that the Court has “allowed and engendered the ongoing abuse, humiliation and
degradation of Plaintiff.” (Id.) The allegations of abuse principally relate to questions the Court
posed to Plaintiff during the March 2, 2021 hearing (see Finkelstein 8/24/21 Decl. ¶ 6; Antolini
8/23/21 Decl. ¶ 4), and questions Mizrahi posed to Plaintiff at his April 19, 2021 deposition, for
which Plaintiff purports to hold the Court accountable. (See Finkelstein 8/24/21 Decl. ¶ 4 (“At
that deposition, Mr. Antolini was abused, persecuted, ridiculed, shamed, and robbed of his
dignity, all condoned by Judge Aaron.”); see also id. ¶¶ 7, 8; Antolini 8/23/21 Decl. ¶ 6.) In
addition, Plaintiff asserts in his sworn Declaration in support of recusal that the Court’s bias
against him is evidenced by the Court having “order[ed him] to turn over [his] medical records
from birth.” (Antolini 8/23/21 Decl. ¶ 5 (emphases in original); see also Finkelstein 8/24/21 Decl.
¶ 10[3].) Plaintiff also believes the Court’s bias is apparent from certain of the Court’s Orders (1)
imposing and declining to lift a stay of discovery against certain Defendants (see Finkelstein

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8/24/21 Decl. ¶¶ 9, 17; Antolini 8/23/21 Decl. ¶ 4); and (2) denying Plaintiff’s motion under Rule
30(d) to terminate his deposition (see Finkelstein 8/24/21 Decl. ¶ 11; Antolini 8/23/21 Decl. ¶ 6). 9
At the time he filed the instant motion, Plaintiff had not filed with Judge Daniels a single
objection to any Order issued by the Court. Indeed, to date, he has not done so. 10
LEGAL STANDARDS
Section 144 of Title 28 of the United States Code provides:
Whenever a party to any proceeding in a district court makes and files a timely
and sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse party, such
judge shall proceed no further therein, but another judge shall be assigned to hear
such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and shall be filed not less than ten days before the beginning of
the term at which the proceeding is to be heard, or good cause shall be shown for
failure to file it within such time. A party may file only one such affidavit in any
case. It shall be accompanied by a certificate of counsel of record stating that it is
made in good faith.
28 U.S.C. § 144. The submission of an affidavit to the Court pursuant to this section does not lead
to automatic recusal. See Williams v. New York City Housing Auth., 287 F. Supp. 2d 247, 248-49
(S.D.N.Y. 2003) (citing Nat’l Auto. Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d
Cir. 1978) (“[M]ere filing of an affidavit of prejudice does not require a judge to recuse himself.”)).
Rather, the trial judge “must review the facts included in the affidavit for their legal sufficiency
and not recuse himself or herself unnecessarily.” Williams, 287 F. Supp. 2d at 249 (citing Rosen

Finkelstein also faults the Court for insufficiently encouraging the parties to settle this action. (See
Finkelstein 8/24/21 Decl. ¶ 10[1].) Even accepting Finkelstein’s premise, it is not clear how such conduct
would suggest bias in favor of or against any particular party or parties.
9

The only review that Plaintiff has sought from Judge Daniels was of the Court’s report and
recommendation that Plaintiff’s motion for a default judgment against certain defendants be denied,
which recommendation Judge Daniels adopted. (See 7/26/21 Am. Order, ECF No. 206.)
10

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v. Sugarman, 357 F.2d 794, 797 (2d Cir. 1966)). To be legally sufficient under Section 144, an
affidavit must show “‘the objectionable inclination or disposition of the judge’ [and] it must give
‘fair support to the charge of a bent of mind that may prevent or impede impartiality of
judgment.’” Rosen, 357 F.2d at 798 (quoting Berger v. United States, 255 U.S. 22, 33-35 (1921)).
Under 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). This subsection “governs circumstances that constitute an
appearance of partiality, even though actual partiality has not been shown.” Chase Manhattan
Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 127 (2d Cir. 2003) (citing Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 860 (1988)). “In determining whether Section 455(a) requires
recusal, the appropriate standard is objective reasonableness—whether ‘an objective,
disinterested observer fully informed of the underlying facts, [would] entertain significant doubt
that justice would be done absent recusal.’” United States v. Carlton, 534 F.3d 97, 100 (2d Cir.)
(quoting Diamondstone v. Macaluso, 148 F.3d 113, 121 (2d Cir. 1998).
While Subsection 455(a) addresses the appearance of impropriety, Subsection 455(b)
“addresses the problem of actual bias by mandating recusal in certain specific circumstances
where partiality is presumed.” United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000).
Subsection 455(b) provides, in relevant part, that a judge must disqualify himself “[w]here he has
a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1).
“Events occurring in the course of judicial proceedings generally do not constitute a basis
for recusal unless they indicate that the judge has a deep-seated favoritism or antagonism that
would make fair judgment impossible.” United States v. Conte, 99 F.3d 60, 65 (2d Cir. 1996)
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(internal quotation marks and citations omitted). Thus, “judicial remarks . . . that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support
a bias or partiality challenge.” Liteky v. United States, 510 U.S. 540, 555 (1994); see also id. at 556
(“A judge’s ordinary efforts at courtroom administration—even a stern and short-tempered
judge’s ordinary efforts at courtroom administration—remain immune.”). Moreover, “it is wellsettled that a judge’s adverse rulings and decisions against a party almost never are a valid basis
for a party to seek disqualification based on bias or impartiality.” Pri-har v. United States, 83 F.
Supp. 2d 393, 397 (S.D.N.Y. 2000) (citing Liteky, 510 U.S. at 555).
“The decision to grant or deny a recusal motion is committed to the sound discretion of
the judge to whom the motion is directed.” Metro. Opera Ass’n, Inc. v. Loc. 100, Hotel Emps. &
Rest. Emps. Int’l Union, 332 F. Supp. 2d 667, 670 (S.D.N.Y. 2004). “[A] judge has an affirmative
duty . . . not to disqualify himself unnecessarily, particularly ‘where the request for
disqualification was not made at the threshold of the litigation and the judge has acquired a
valuable background of experience.’” Nat’l Auto. Brokers Corp., 572 F.2d at 958. “A judge is as
much obliged not to recuse himself when it is not called for as he is obliged to when it is.” In re
Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988). “[J]udges must be alert to avoid
the possibility that those who would question [their] impartiality are in fact seeking to avoid the
consequences of [the judge’s] expected adverse decision.” United States v. Lovaglia, 954 F.2d
811, 815 (2d Cir. 1992) (internal quotation marks and citation omitted and alterations in original).
APPLICATION
Having carefully considered the various assertions made by Finkelstein and Plaintiff in
their Declarations, the Court finds that recusal is not warranted, because there is no chance that
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“a reasonable person, knowing all the facts, would conclude that the [Court’s] impartiality could
reasonably be questioned.” United States v. Wedd, 993 F.3d 104, 114 (2d Cir. 2021) (internal
quotation marks omitted).
First, the questions that the Court posed at the March 2, 2021 hearing to Plaintiff about
his difficulty speaking and about his prior court appearances—which Finkelstein selectively
quotes in paragraph 6 of his Declaration as demonstrating bias and prejudice—were designed to
determine whether, as Finkelstein had argued, Plaintiff was “unable to verbally participate in his
deposition,” such that the deposition should be taken on written questions, instead of orally. (See
Pl.’s 2/16/21 Ltr. at 1, 3.) As set forth above, the Court had reason to be skeptical of Finkelstein’s
belated representation on this point and, as such, sought to hear directly from Plaintiff himself.
Indeed, the Court’s skepticism was borne out by the fact that, ultimately, Plaintiff’s remote live
deposition was successfully taken and transcribed, with Plaintiff verbally participating. In any
event, these questions “occur[ed] in the course of judicial proceedings” and could not reasonably
be understood to “indicate . . . a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Conte, 99 F.3d at 65.
Finkelstein devotes several pages of his Declaration to various purportedly objectionable
lines of questioning that Mizrahi posed to Plaintiff during his April 19, 2021 deposition, with the
implication that the Court “condoned” Mizrahi’s behavior. (See Finkelstein 8/24/21 Decl. ¶ 7, at
5-10; see also id. ¶ 4.) But it is not clear on what basis Mizrahi’s questions could be imputed to
the Court. Finkelstein quotes extended passages from the mid-deposition phone calls between
the parties and the Court, insinuating that the Court’s statements during these calls might
somehow have condoned Mizrahi’s allegedly abusive questioning. (See id. ¶ 7, at 10-12
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(underscoring (literally), e.g., my comment that “[i]f I thought there were harassment of any
kind going on here, then I would certainly not be making the ruling I’m making” (all emphases
provided by Finkelstein)).) But these calls occurred at the very beginning of Plaintiff’s deposition;
the questions Plaintiff complains about occurred only afterwards. (Compare Finkelstein 8/24/21
Decl. ¶ 7, at 10-12, with 4/19/21 Dep. Tr. at 38-52; compare Finkelstein 8/24/21 Decl. ¶ 7, at 510, with 4/19/21 Dep. Tr. at 222-51.) Even Plaintiff has admitted in subsequent briefing that, at
the time of the parties’ second and last mid-deposition call to the Court, “the bulk of the
deposition had not yet occurred,” such that the Court “was not privy to the [allegedly] sordid
abhorrent conduct of [Defendants’] counsel” that occurred thereafter. (Pl.’s 9/28/21 Mot. for
Sanctions, ECF No. 242, at 22.)
Second, no objective, disinterested, fully informed observer could find the Court’s denial
of Plaintiff’s Rule 30(d) motion indicative of the Court condoning Mizrahi’s questioning or
otherwise indicative of the Court’s anti-Plaintiff bias. (See Finkelstein 8/24/21 Decl. ¶ 11; Antolini
8/23/21 Decl. ¶ 6.) Even as the Court denied Plaintiff’s request to terminate his deposition and
denied without prejudice his motion for sanctions, the Court invited him to move for sanctions
against Mizrahi on the full deposition record, once his deposition was complete. Moreover,
Finkelstein’s own April 19 conduct belies the claim that Plaintiff’s 30(d) motion’s request for his
deposition to be terminated was legitimately motivated by a desire to protect Plaintiff from
“unreasonabl[e] annoy[ance], embarrass[ment], or oppress[ion].” See Fed. R. Civ. P. 30(d)(3)(A).
Not only did Finkelstein allow the deposition to proceed throughout the questioning about which
Plaintiff now complains—failing to raise the prospect of a 30(d) motion until Mizrahi began asking
Plaintiff about the Criminal Complaint filed against Finkelstein (See 4/19/21 Dep. Tr. at 272-82)—
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but also, later that same day, after unilaterally terminating the deposition, Finkelstein wrote to
the Court that Plaintiff was “ready, willing and able to continue with his deposition.” (See Pl.’s
4/19/21 Ltr., ECF No. 158.) In any event, as provided above, a judge’s adverse rulings are an
improper basis for a party to seek disqualification based on bias or impartiality. Pri-har, 83 F.
Supp. 2d at 397.
Third, Plaintiff’s allegation that the Court is biased against him because the Court ordered
him to turn over medical records going back to his birth is baseless because the Court did not
order him to do so over his objection; rather, through counsel, he voluntarily agreed to do so.
During a telephone conference held on October 14, 2020, Finkelstein himself agreed to have
Plaintiff sign a HIPPA authorization providing medical records “unlimited” in time. (See 10/14/20
Tr., ECF No. 109, at 15 (“I’ll give it to him. This is minutia. This is just stalling and churning. I’ll give
him back to when he was—unlimited, I’ll give it to him . . . .”); see also 10/14/20 Order, ECF No.
88, ¶ 1 (“No later than Wednesday, October 21, 2020, Plaintiff shall provide Defendant with a
revised HIPAA release as agreed during today’s conference.”).) Further, and once again,
“[d]isagreement or dissatisfaction with the Court’s rulings is not enough to succeed on [a recusal]
motion.” Chevron Corp. v. Donziger, 783 F. Supp. 2d 713, 723 (S.D.N.Y. 2011) (citation omitted);
see also id. (“An adversary system inherently has one side that wins and another that loses. If
losses compromised the appearance of justice, this system would grind to a halt.” (citations and
internal quotation marks omitted)). 11

For the same reason, Plaintiff’s argument for recusal on the basis of the Court’s Orders concerning the
stay of certain discovery is a non-starter.
11

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Finally, as to the assertions regarding bias and prejudice against Finkelstein himself,
Finkelstein states that “[t]he docket is filled with arbitrary & capricious orders and decisions,
unfounded in law and fact, devoid of any rationale, blatantly aimed squarely against [him].”
(Finkelstein 8/24/21 Decl. ¶ 14.) Notably, however, while Finkelstein could have filed objections
to any Order that he believed was “arbitrary & capricious,” “unfounded in law and fact” or
“devoid of any rationale”—indeed, given his professional obligations to Plaintiff, he was duty
bound to do so—he never did so. Finkelstein further states that “[d]uring every conference
subsequent to June 6, 2020, Judge Aaron has shouted at me with disdain.” (See id.) Yet nothing
cited in Finkelstein’s arguments regarding the Court’s demeanor and tone reflects bias or
prejudice against Plaintiff warranting the Court’s recusal. See Liteky, 510 U.S. at 555 (“[J]udicial
remarks . . . that are critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge[.]”); Rosen, 357 F.2d at 798 (“[A]n
occasional display of irritation, usually regretted as soon as made, does not suffice to show
personal bias or prejudice, whether the irritation was justified or not[.]”); United States v. Int’l
Bus. Machs. Corp., 475 F. Supp. 1372, 1383 (S.D.N.Y. 1979) (“Antipathy to an attorney is
insufficient grounds for disqualification under section 144, because it is not indicative of
extrajudicial bias against a ‘party.’” (citation omitted)), aff’d, 618 F.2d 923 (2d Cir. 1980).

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CONCLUSION
By reason of the foregoing, in my discretion, Plaintiff’s motion for recusal is DENIED.
Dated:

October 6, 2021
New York, New York
________________________________
STEWART D. AARON
United States Magistrate Judge

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