Opinion 88-36

April 11, 1988

Topic:          Judicial assistance in the preparation of a petition under Article 7 of the Real Property Actions and Proceedings Law.

Digest:         It is inappropriate for the justice who will decide a proceeding to recover possession of real property (RPAPL Art. 7) to assist a party in preparing the petition bringing on the proceeding.

Rules:          Code of Judicial Conduct, Canon 3A(4); Rules of the Chief Administrator of the Court, 22 NYCRR §100.3(a)(4).

Opinion:

         A town justice, who is secretary of his local Magistrates’ association, has inquired whether it is proper for the members of his association, as part of their duties as town or village justices, to assist persons in preparing petitions and notices of petition in summary proceedings to recover possession of real property pursuant to Article 7 of the Real Property Actions and Proceedings Law. The petition would be returnable before the justice furnishing such assistance. The inquirer states that members of his association have received conflicting advice as to the propriety of furnishing such assistance at training sessions sponsored by the local Magistrates’ association.

         Canon 3A, paragraph (4) of the Code of Judicial Conduct and the Rules of the Chief Administrator [22 NYCRR §100.3(a)(4)] each provide in pertinent part:

A judge shall accord to every person who is legally interested in a matter ... full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending matter.

         In assisting a person in preparing a petition to initiate a summary proceeding, the justice would necessarily consider an ex parte communication from the proposed litigant, and would receive factual information, the accuracy of which could not be contested by the adversary party. For this reason, it would be improper for a justice to provide such assistance to a petitioner.

         The justice may take the verification of the petition and accept the petition for filing after it has been completed by the petitioner, provided the facts are not discussed in the absence of the respondent. Nor is this opinion intended to prohibit non-judicial personnel from extending appropriate assistance to pro se litigants.

This Opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.