July 15, 2009
Dear Justice :
This responds to your inquiry (09-117) asking whether it is ethically permissible to preside over a tax certiorari proceeding bought by a Surrogate Court Judge elected within your district.
There is no ethical prohibition to hearing your colleague’s proceeding as long as you believe you can be fair and impartial (see 22 NYCRR 100.2; 100.2[A]; 100.3[E]). If you decide to hear the case, the Committee recommends you disclose to all parties the full extent of your relationship with the other judge. If a party objects, it is ultimately your decision whether to exercise recusal or remain on the case (see People v Moreno, 70 NY2d 403, 405  [absent legal disqualification, trial judge is sole arbiter of recusal]).
Enclosed, for your convenience, is Opinion 89-71 which addresses this issue.
Very truly yours,
George D. Marlow
Justice of the Supreme Court