Opinion 04-52

April 22, 2004

Digest:         The fact that the judge had granted an uncontested divorce to a party from whom the judge purchased real property more than a year after granting the divorce does not preclude the judge from bringing an action against the party alleging defects in the property purchased.

Rules:          22 NYCRR 100.2(C).

Opinion:

         The inquiring judge seeks guidance as to whether he/she should discontinue litigation instituted against a seller of real property for latent defects, based upon the fact that, as a judge, the inquirer had previously presided over the defendant-seller’s uncontested divorce action. The purchase of the subject real property took place more than a year after the conclusion of the seller’s divorce proceedings.

         The judge advises that a motion has been filed in the real property action, wherein the defendant’s attorney is raising the question of whether the claim should be pursued by the judge, due to his prior involvement as the presiding judge in the defendant-seller’s uncontested divorce action. A second question is also raised about the potential “ramifications to the judiciary” in the event that the defendant-seller, or his former wife, filed a post-judgment divorce application. No such application has been filed to date. Therefore, that portion of the inquiry would appear to be premature, but even if a post-judgment divorce application were filed during the pendency of this real property litigation, the application could be transferred to a different judge.

         We note that nothing in the Rules Governing Judicial Conduct precludes a judge from pursuing a private legal claim. The fact that a judge is a plaintiff does not mean that the judge by virtue of instituting a legal action is somehow using the prestige of judicial office to advance the private interest of the judge. 22 NYCRR 100.2(C). Nor, in our opinion, does the fact that in this instance the claim is against a party who was previously before the judge as a litigant in an uncontested divorce proceeding abrogate the judge’s rights as a person claiming redress for a legal wrong. Perhaps the only issue for consideration is whether there may be an appearance of impropriety due to the fact that the judge originally purchased the subject real property after presiding over the seller’s uncontested default divorce action, wherein the subject real property was listed on the applicable schedules as a non-martial asset. However, the propriety of the sale to the judge is not in issue, nor is any question being raised as to the propriety of listing the asset as a separate property. What is at issue in the pending lawsuit is the claim of whether the seller was fraudulent and misleading in his alleged failure to disclose latent defects. The judge’s involvement in the earlier divorce action is thus totally unrelated to the resolution of such issues. There is, therefore, in our opinion, no ethical basis which requires the judge to forego pursuit of a legal remedy.