Opinion 22-144

October 27, 2022

Question:          In the course of presiding in a code violation case, you learned the tenants vacated the premises over a month ago. You believe this fact will be relevant in the landlord's subsequent petition for nonpayment against the tenants, which is now before your court. You ask if you may preside in the nonpayment case.

Discussion:       A judge must disqualify him or herself when the judge's impartiality might "reasonably be questioned" (22 NYCRR 100.3[E][1]), including when the judge "has personal knowledge of disputed evidentiary facts concerning the proceeding" (22 NYCRR 100.3[E][1][a][ii]) or "is likely to be a material witness in the proceeding" (22 NYCRR 100.3[E][1][e]).

         The Committee has previously advised that disqualifying personal knowledge of a matter refers to extra-judicial knowledge (see e.g. Opinions 15-53, 06-169). Accordingly, "there is no per se requirement for disqualification of a judge based on the judge's having learned facts about a matter in a judicial capacity" (Opinion 19-49, quoting Opinion 89-104). You have not identified any impermissible extra-judicial knowledge or other mandatory basis for disqualification. Therefore, you are not required to recuse yourself, provided that you reasonably believe that you can be fair and impartial.

Enclosed:         Opinions 19-49; 15-53; 06-169; and 89-104.