Opinion 22-185

December 15, 2022

Digest:       Where a housing court judge, who is a shareholder and proprietary lessee in a cooperative apartment building, learns that the building’s board of directors has hired a new management company that manages many other properties that are located in the jurisdiction of the judge’s court:

(1) The judge is not disqualified from presiding in matters where the managing company appears before the judge, but must disclose the relationship on the record;

(2) Where court papers disclose the name of an individual managing agent, but not their corporate affiliation, the judge need not investigate whether the agent is affiliated with the management company;

(3) Upon learning during the proceedings that the management company is involved in a case, it is sufficient for the judge to make full disclosure on the record.

Rules:        Judiciary Law §§ 14; 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 101.1; Opinions 22-132; 19-144; 16-175; 15-147; 13-54; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring full-time housing court judge is a shareholder and proprietary lessee in a cooperative apartment building (“co-op”) but does not serve on the co-op’s board. The judge has learned that the board has hired a new management company that manages many other properties that are located in the same jurisdiction as the judge’s court. In proceedings before the judge, the name of an individual managing agent is often disclosed in court papers without reference to a corporate entity with whom the agent is affiliated. The judge asks whether disqualification or disclosure is required if the judge becomes aware that the management company manages a property in a case before the judge, and whether the judge must determine the corporate affiliation of the managing agent in each case when it is not apparent from court filings.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in specific circumstances required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). If disqualification is not mandated under objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         We draw an analogy to Opinion 19-144, in which a judge was a regular, non-board member of a property owners’ association whose board retained a law firm that regularly appears before the judge. There, we concluded that while the law firm was representing the property owners’ association, the judge “must disclose the representation when the law firm appears before him/her on behalf of other clients but may thereafter preside” (id.). Here, as in Opinion 19-144, it is the co-op board rather than the individual proprietary lessees that selects, retains and interacts with the managing company on an everyday basis. Thus, we likewise conclude that the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1] [emphasis added]) based on the relationship between the inquiring judge’s co-op board and the new management company, but disclosure is nonetheless required when the judge becomes aware that the management company is involved in a case before the judge, in order to avoid any possible appearance of impropriety. Once the judge discloses the connection, the judge may preside, provided the judge concludes they can be fair and impartial. Even if a party or counsel objects, the decision whether to recuse remains within the judge’s sole discretion.

         The judge further asks about their ethical obligations in cases where only an individual managing agent is named in court papers without listing an affiliated management company. Another analogy informs our analysis here. Addressing a judge’s conflict with a particular law enforcement officer who is the judge’s client, we said that although the judge “need not separately scrutinize all pleadings to determine whether his/her client is the issuing officer, the judge must not [proceed] … if the client’s role as issuing officer is readily available, such as in those instances where the officer’s name appears on the ticket” (Opinion 16-175). We explained that this approach is intended to protect a judge who “may inadvertently overlook an obscure reference” but it “does not authorize judges to turn a blind eye to information on the face of the” papers (id.). Here, we conclude that where no connection to the management company for the judge’s co-op building is readily apparent from the court documents, the judge need not investigate further to determine whether the agent might possibly be affiliated with the management company.

         Finally, the judge asks what to do if the judge learns during the course of the proceedings, or even during trial, that the co-op’s management company is involved in the case. Once the judge becomes aware of such a connection, full disclosure on the record is sufficient (cf. Opinions 22-132; 15-147; 13-54). Again, provided the judge can be fair and impartial, the judge may preside even if a party or attorney objects.

         We cannot comment on legal questions, such as when a judge must declare a mistrial (see generally 22 NYCRR 101.1; Judiciary Law § 212[2][l]).