Disqualification of a Trial Judge

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 331-346

CHAPTER 11

Disqualification of a Trial

Judge

§11:01 New York Trial Notebook 11-2

I. STATUTORY

DISQUALIFICATION

§11:01 Authority

Disqualification of a trial judge in New York

is very difficult and very rare. The sole statutory

authority for disqualifying a judge from hearing

a case is found in Jud L §14. It states that a judge

shall not preside in a matter in which the judge:

• Is a party;

• Has been counsel [see §11:03];

• Is “interested [see §11:04];” or

• Is related by consanguinity or affinity to any

party within the sixth degree [See §11:05].

[Jud L §14.]

§11:02 Statutory Disqualification

Is Mandatory

A judge who does not recuse himself or herself

in violation of Jud L §14 lacks jurisdiction to hear

the case, and any decision rendered is void. [LaPier

v. Deyo, 100 AD2d 710, 474 NYS2d 597 (3d Dept

1984).] This is so even though the parties consent for

the judge to hear the case. [Casterella v. Casterella,

65 AD2d 614, 409 NYS2d 548 (2d Dept 1978).]

NOTE: An agreement that a judge may hear a case

after disclosure of factors not within Jud L §14 is a

waiver. Matter of Arcarese v. Monachino, 58 AD2d

1030, 397 NYS2d 284 (4th Dept 1977) (judge had

offered to disqualify himself because of past contacts

with members of defendant’s family, plaintiff could

not on appeal raise the issue after consenting that the

judge hear the case). NOTE: Jud L §14 provides that

a judge’s ownership of stock of a corporate litigant

may be waived by the parties in writing or in open

court on the record. [See §11:04.] NOTE: 2004

amendments to the Rules of the Chief Administrator

address the situation of a judge owning mutual funds

or minor equity interests in parties appearing before

him or her. See §11:04, infra.

§11:03 When Judge Has Been

Counsel

A trial judge should disqualify himself or herself

when a party consulted the judge as an attorney in a

related matter even if the party did not formally retain

the judge. [Murray v. Murray, 73 AD2d 1015, 424

NYS2d 50 (3d Dept 1980).] For example in Murray,

a divorce action, defendant-wife had earlier sought

advice from the trial judge, then a legal aid attorney.

In reversing the order denying disqualification, the

court said “we deem it to the benefit of the judiciary

that where an appearance of improper judicial interest

emerges, the integrity of the judiciary requires that

a judge disqualify herself.” Murray drew a spirited

dissent, which argued no attorney-client relationship

had been established within the meaning of Jud L

§14.

The judge need not disqualify himself or herself

if the judge’s former law firm had in a different

proceeding represented a party who was adverse to a

litigant in the instant case. [111 East 88th Partners, v.

Simon, 127 Misc2d 74, 489 NYS2d 139 (Sup Ct App

Term, 1st Dept 1985) (“too thin a reed” upon which

to require disqualification, particularly where there

was no suggestion that the judge had any substantial

involvement in the other litigation); but see Corradino

v. Corradino, 48 NY2d 894, 424 NYS2d 886 (1979)

(dicta that the better practice would have been for the

judge to recuse herself).]

§11:04 When Judge Is

“Interested”

Whether a judge is truly “interested” in a case

is normally a matter of little debate. The interest

indicated in Jud L §14 is a pecuniary or property

interest that would be affected by the action.

[People v. Lewis, 165 Misc2d 814, 630 NYS2d 605

(Sup Ct Kings County 1995).] Creative counsel

have unsuccessfully attempted to couch “interest” in

other terms. [See, e.g., Avon Products, Inc. v. Solow,

270 AD2d 122, 704 NYS2d 255 (1st Dept 2000),

discussed below.] The interest need not be large, but

it must be real, not merely speculative or contingent.

[Matter of Shelburne, 124 Misc2d 708, 710, 476

NYS2d 419 (Surr Ct Queens County 1984).] The

interest must be certain, visible, demonstrable and

capable of precise proof. [111 East 88th Partners

v. Simon, 127 Misc2d 74, 489 NYS2d 139 (App

Term 1st Dept 1985). See also Langdon v. Town of

Webster, 270 AD2d 896, 896, 706 NYS2d 547, 549

(4th Dept 2000) (challenge to Town’s resolution

dealing with monies in the water fund, contention

that the Supreme Court Justice, a Town property

owner, should have recused himself was rejected,