July 19, 2022
This responds to your inquiry (22-82) asking whether you may rule on a cross-motion for sanctions, where the basis for sanctions is counsel’s “filing of a frivolous motion” for your recusal based on “misleading and false” allegations about your conduct, which counsel also repeated in a complaint to the Commission on Judicial Conduct.
We have previously advised that an attorney’s decision to file a complaint with the Commission on Judicial Conduct does not, by itself, require the judge’s disqualification. Therefore, a judge may preside in cases involving the attorney who reported the judge to the Commission on Judicial Conduct, provided the judge can be fair and impartial, even if the complaint remains pending and the Commission is investigating the matter. However, disqualification is required if the Commission has formally charged the judge with misconduct in a formal written complaint under Judiciary Law § 44(4).
Accordingly, you may rule on a cross-motion for sanctions where counsel has filed a motion for your recusal and filed a complaint to the Commission on Judicial Conduct, provided the Commission has not formally charged you with misconduct in a formal written complaint.
Enclosed for your reference are Opinions 17-17; 16-129; 20-163; 16-141.
Very truly yours,
Justice of the Supreme Court
Appellate Division, Second Department