Business & Tech

Surf Lodge's Attempt To Get New Judge on Case Denied

Justice Catherine A. Cahill will continue to preside.

, in the mist of defending the 686 violations of the East Hampton Town Code, had asked the judge to recuse herself. In a decision handed down on Monday, Catherine A. Cahill refused.

Defense attorney of Southampton alleged Cahill had a bias toward his clients and had ex-parte conversations with prosecutors.

Edgemere Montauk, LLC, which operates the restaurant and late-night hot spot in Montauk, was charged with having no building permit and no site plan approval, as well as wracking up charges under the town and fire code, such as property maintenance violations, overcrowding violations and was accused of illegally clearing wetlands. Violations were filed daily, between adjournments, from May 28 to Sept. 16, 2011.

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Noted in the decision is the history of the case, which includes several missed court appearances by the defendants Jamie Mulholland and Robert McKinley and their attorney. Criminal summons and warrants were issued to secure their appearance in court in the middle of the summer, according to the decision.

The judge was then made aware, according to the decision of a meeting that had taken place between the defendants and the town attorney, police chief and building inspector.

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"Based on that meeting, defense counsel believed his presence in court was somehow not required, despite the numerous charges on the court docket, as well as the two personally served summons," Cahill wote. "If this meeting was intended to somehow resolve or adjudicate the charges pending on the court's calendar, then the court should have been consulted. The court was completely unaware of any such meeting and informed counsel of same."

More summons were issued despite that meeting.

Cahill wrote that an inquiry was made by the court with the New York State Justice Court Resource Center about the necessary grounds for obtaining an injunction to bring the restaurant into compliance with code. She wrote, "It did not pertain in any way to the merits of the underlying charges; in fact it was made very clear that no conviction was called for, just a health and safety violation, which despite the prosecutions claim to the contrary, do exist."

In her decision, the judge wrote that ex-parte communications are not grounds for recusal if they don't involved disputed issues or trial strategy.

Cahill provided examples of Judiciary Law and case law in which judges should recuse themselves. The judge wrote that mere opinions formed do not constitute the basis for bias unless "deep-seated antagonism" is displayed, making fair rulings impossible.

"Thus, expressions of impatience, dissatisfaction or annoyance, or critical disapproving remarks about counsel, a party or the case, will not support a charge of bias unless they derive from an extra-judicial source or display such a high degree of favoritism or antagonism as to made fair judgement impossible," the decision read.

Astarita did not return a call for comment.

Town Attorney Pat Gunn, who oversees code enforcement issues, said he had no comment on the decision, as it did involve the town. He said the case would now move forward.


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