Opinion 09-23

February 26, 2009

Hon.

Dear Judge :

         This responds to your inquiry (09-23) asking whether you may sit as an arbitrator in Small Claims Court, notwithstanding Court of Claims Act §3. While there is no ethics prohibition to a full-time judge sitting as an arbitrator in a non-private capacity (see 22 NYCRR 100.4[F]), the question whether the proposed employment is permissible under that Act is one of statutory interpretation and, therefore, beyond the Committee’s jurisdiction (22 NYCRR 101.1).

         Although the Committee concluded in Opinion 07-12, to which you refer in your inquiry, that a Supreme Court Justice may serve as a volunteer arbitrator in the small claims part of the New York City Civil Court, that opinion is not dispositive for you, as the Committee did not need to consider any statutory provision comparable to Court of Claims Act §3 in reaching its conclusion.

                                                 Very truly yours,

                                                 George D. Marlow

                                                 Justice of the Supreme Court

                                                 Committee Chair