Opinion 96-110

October 11, 1996

Digest:         The fact that in 1989 the town justice’s former law firm had represented the then-landlord in a non-litigated landlord-tenant dispute does not require recusal in an unrelated landlord-tenant proceeding involving the current landlord and the same tenant.

Rules:          22 NYCRR 100.3 (E); Opinion 92-75

Opinion:

         In 1989, the inquiring town justice’s former law firm represented the landlord in a non-litigated landlord-tenant dispute which was resolved by a settlement. There is now before the judge a landlord-tenant dispute involving a different landlord but the same tenant. The judge had not been involved in the 1989 matter, and there apparently is no relationship between the two matters. The judge asks whether a motion for recusal by the present landlord should be granted.

         A judge should not exercise recusal unless the judge’s impartiality might reasonably be questioned or there is the appearance of impropriety. [22 NYCRR 100.3 (E)(1); see Opinion 92-75.] A judge must recuse where the judge knows that (i) the judge served as a lawyer on the matter in controversy or (ii) a lawyer with whom the judge practiced law served during such association as a lawyer concerning the matter. [22 NYCRR 100 (E)(1)(a]). On the facts presented, it does not appear that the prior representation involved the matter in controversy in the current case. Therefore, recusal on the grounds of prior representation by the judge’s law firm of a person who is not a party to the present litigation is not required.

         This opinion assumes that the judge has no personal bias or prejudice concerning either party [22 NYCRR 100.3 (E)(1)(a)(i]), and believes that he/she can be impartial. Further, the opinion is based solely on the assumption that the facts are as stated in the inquiry.