In a case arising from a years-long investigation conducted by the Office of the Attorney General of the State of New York into certain business practices from 2011 through 2021, the defendants were found liable for repeated and persistent fraud. The Court granted summary judgment on liability for the first cause of action and, after a three-month trial, found the defendants liable on six other causes of action. In response to an unsolicited ex-parte communication from a lawyer, the defendants moved for the judge to recuse themselves or for an evidentiary hearing before another justice.
The lawyer, Adam Leitman Bailey, approached the judge before the decision was issued and attempted to influence the case, leading to a subpoena for Bailey to disclose any relevant documents or communications. The judge, in response to the defendants’ motion, highlighted that the communication did not impact their decisions and cited previous cases where judges’ conduct was called into question for comparison.
The defendants’ motion was not supported by the judge, who emphasized that the rulings were based on the law and the facts of the case, not influenced by any external communication. The judge dismissed the relevance of editorials critiquing their decisions and cited previous cases where judges’ actions were deemed inappropriate for recusal, noting that the circumstances were different in this case.
In 2017, the presiding judge in a case repeatedly initiated ex-parte conversations in an attempt to influence a favorable disposition of his daughter’s traffic ticket. I did not initiate the encounter, I did not converse, and neither I nor any of my family members have a personal interest in this case.
In People v Lester (N.Y. Just. Ct. 2002), the judge received an ex-parte communication at his home from a party to the proceeding.
In Matter of VonerHeide (N.Y. 1988), the judge routinely sought out and interviewed witnesses outside of court and ruled based on their unsworn communications.
Defendants’ reliance on Matter of Fuchsberg (N.Y. Jud. Ct. 1978) is misplaced, as in that case the judge presided over a matter in which he had an undisclosed financial interest, and in which the Judge consulted with law professor colleagues on at least 12 cases pending before him.
In Matter of Murphy (N.Y. 1993), the judge was “careles[s] in handling public moneys” deposited into Court….
In sum, all of defendants’ cases are manifestly distinguishable, simply inapposite, or denied recusal.
Finally, defendants emphasize their claim that “this Court, based on public reporting, is also now apparently under investigation by the Commission on Judicial Conduct.” However, the Commission has not contacted me, nor I am aware of any such investigation. An unsubstantiated allegation of an investigation cannot require disqualification.
Discussion
“It is settled that ‘absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal.’
As no grounds for mandatory recusal exist here, it is up to me and my conscience to determine whether this 90-second, unsolicited diatribe about a law with which I was fully familiar and in which I was fully immersed, by a non-party and non-expert who conveyed no facts, in any way affected my adjudication of a dispute over which I had presided for three and a half years, during which time I had already issued several dispositive decisions. I hereby definitively state that it did not.
Directly on point, the Advisory Committee on Judicial Ethics has opined that a judge is not ethically obligated to disclose an attempted ex-parte communication from a non-party who alleges no relevant facts, but merely expresses a view as to how a matter should be decided, and which is not considered by the judge. Advisory Opinion 98-144, available at https://www.nycourts.gov/ipjudicialethicsopinions/98-144_.htm
Additionally, “No judge may recuse based upon wrongful acts allegedly committed by some other person.” R&R Capital LLC v Meritt (N.Y. Sup. Ct. 2008) (stating “[b]ecause this Court holds no bias for or against any party to this dispute, but has expressed in our determination of the issues put before us who shall be the prevailing side, there is no basis upon which recusal may be granted”). Accordingly, recusal based on the sole actions of Bailey, which did not influence my decisions, is unwarranted.
Moreover,
[W]hen there is no ground for recusal, recusal should not be ordered, especially when prejudice will result. Indeed, “‘[a] judge has an obligation not to recuse himself or herself, even if sued in connection with his or her duties, unless he or she is satisfied that he or she is unable to serve with complete impartiality, in fact or appearance.’
I have been presiding over this action, and the special proceeding that preceded it, for over three and a half years. The two dockets have a combined 2,624 separate entries. I have reviewed tens of thousands of documents in camera (and out), throughout extensive disclosure, motion practice, and the trial. To recuse myself now would result in immense prejudice to the parties, the public, and the judicial process.
I am supremely confident in my ability to continue to serve, as I always have, impartially.
Alternative Relief Sought
As an alternative to recusal, defendants request an evidentiary hearing, before another justice of the Court, “on the veracity of Mr. Bailey’s allegations and the Court’s and [the Office of Court Administration’s] denial.” In support of their request, defendants cite to a string of cases that, by defendants’ own description, have “held that an attorney accused of professional misconduct must have an opportunity to confront the witnesses and subject them to cross-examination.” However, such a rule would give standing only to Bailey, who is accused of wrongdoing, to confront witnesses against him in an inquiry into his alleged professional misconduct. These cases do nothing to advance the relief defendants seek herein….
