Opinion 17-05

March 15, 2017

Dear :

         This responds to your inquiry (17-05) asking whether you may continue to preside over a contentious post-judgment matrimonial proceeding after a party, whom you previously sanctioned, has commenced a lawsuit for, inter alia, defamation against you and others involved in the matrimonial action. The party bringing the defamation action had, in the course of the matrimonial proceeding, made several applications for your recusal. Your decision to remain on the case was appealed and affirmed.

Neither Judiciary Law section 14 nor section 100.3(E)(1) of the Rules Governing Judicial Conduct mandate disqualification under these circumstances. Indeed, the Committee has previously advised judges that, absent a showing of prejudice, they could continue to preside over cases even though sued in their official capacity in another matter by one of the parties, as long as the judges believed they could be fair and impartial. "Any rule requiring automatic recusal under such circumstances could enable disgruntled litigants to engage in ‘judge shopping’” (Opinion 13-41, quoting 98-69).

Enclosed for your convenience are Opinions 14-105; 13-41; 12-94 and 88-54, which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

Committee Co-Chair

Encls.