Opinion 97-08

March 13, 1997

Digest:         A judge who was formerly deputy chief of a branch office of the Tort Division of the Corporation Counsel's office, with general supervisory authority over tort cases against the municipality that had been brought in the county where the judge now sits, may not preside over any tort cases that were pending in the county office at the time.

Rules:          22 NYCRR 100.2(A); 100.3(E)910(a)(ii), (b)(I), Opinion 93-116 (Vol. XI).

Opinion:  

         A judge asks whether it is proper to preside in a part of the court devoted to handling tort cases brought against the municipality in the county where the judge sits. The judge is a Supreme Court justice in a large city comprised of a number of counties. Previously, the judge had served as the deputy chief of a county branch of the Tort Division of the Corporation Counsel's office, and in that capacity exercised general supervisory authority over all pretrial motion and discovery practice in tort cases against the municipality that had been brought in the county where the judge presently presides.

         In Opinion 93-116 (Vol. XI), the Committee addressed the issue of recusal by a judge who was formerly an Assistant District Attorney. In that matter, the Committee advised that the judge is disqualified from presiding over any cases in which the judge had previously participated. We also advised, however, that the judge would not be barred from presiding over cases in which the judge had no personal involvement.

         The instant circumstance, however, is more troublesome in that the position held by the inquiring judge involved the exercise of general supervisory authority over all pretrial motion and discovery practice in all pending cases. Furthermore, the volume of cases that were pending in the county office when the judge left was quite substantial. Under such circumstances, it would be impossible to identify with certainty and segregate the specific cases in which the judge had a direct, personal involvement from those in which the judge did not participate personally. The crucial fact is that the judge had general supervisory authority over all pending cases and that fact militates against the judge presiding over any tort cases against the municipality that were pending in the county branch of the Corporation Counsel's Tort Division during the judge's prior employment. 22 NYCRR 100.2(A), 100.3(E)910(a)(ii), (b)(I).