Opinion 12-117

September 13, 2012

Digest:         A judge, who determined that the only remaining issues in a civil matter should be heard in another part of the court and advised the parties that it must be re-filed as a new action, need not disqualify him/herself from thereafter presiding in the new action where the judge has no personal bias or prejudice concerning a party and the judge’s participation does not otherwise create an appearance of impropriety.

Rules:          Judiciary Law §212(2)(l); People v Moreno, 70 NY2d 403 (1987); 22 NYCRR 101.1; 100.2; 100.2(A); 100.3(E)(1); 100.3(F).

Opinion:

         The inquiring judge, while presiding over a hearing in a summary proceeding, determined that changed factual circumstances rendered the summary proceeding moot. The judge therefore directed that the remaining issues be heard in another part of the court and instructed the parties that they must be re-filed as a new action.¹ One of the parties thereafter commenced the new action in the proper part, and the new action was assigned to the inquiring judge. The defendant in the new action has asked the judge to disqualify him/herself, asserting that the judge’s instruction to bring a new action in a different part constitutes legal advice and manifests a personal bias or prejudice in favor of the filing party. The judge states that he/she has no personal bias or prejudice with respect to either party, but asks whether disqualification is warranted under these circumstances.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the specific instances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1]), subject to remittal in appropriate circumstances (see 22 NYCRR 100.3[F]).

         In the Committee’s view, the mere fact that a judge advises a party during a hearing that he/she must pursue a remaining cause of action in another part of the court, without more, does not cause the judge’s impartiality to reasonably be questioned should the judge thereafter preside in the new case the party thereafter commences (see 22 NYCRR 100.3[E][1]).² Thus, as the judge’s disqualification is not mandated by the Rules Governing Judicial Conduct, the judge “is the sole arbiter of recusal” based on his/her personal conscience (People v Moreno, 70 NY2d 403 [1987]).

         Whether the judge properly directed that the remaining issues be heard in another part of the court is a legal question beyond the Committee’s jurisdiction (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).

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         ¹The judge initially referred to this as a “transfer” of the matter, but later stated “I’m going to ask each of you to file a [particular type of] proceeding, if you so desire.” A review of the transcript of the proceedings reveals that the judge did not express an opinion on the validity or merit of the remaining claims and cross-claims.

         ²The Committee notes that a rule to the contrary might hinder a court from dismissing an action with leave to re-serve or re-plead (see e.g. Prudence v Wright, 94 AD3d 1073 [2d Dep’t 2012]; Cianciotto v Hospice Care Network, 32 Misc3d 916 [Nassau Dist Ct 2011]).