March 20, 2009
Dear Justice :
This responds to your inquiry (09-75) asking whether you must exercise recusal as a result of an ex parte communication from another judge who recently inquired about a relative’s trial testimony in a non-jury, civil matter currently pending before you, sub judice.
Because the ex parte communication did not involve any discussion of the subject matter of the pending proceeding or the content of the witness’s testimony, the Committee sees no reason to conclude that you must exercise recusal or that your impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E]). However, even though the communication was innocent, inadvertent and not the type that could reasonably be perceived as influencing a judge presiding over a non-jury civil trial, the Committee nevertheless recommends that you, as a matter of prudence only, disclose the communication to the parties and attorneys in the pending litigation, even though such disclosure in our view is not a requirement in these circumstances. This disclosure would ensure that, should the encounter later become known, the parties could not reasonably believe that it played any part in the court’s decision.
Enclosed, for your convenience, are Opinions 08-23, 07-82, and 98-144 [Vol. XVII]) which address this issue.
Very truly yours,
George D. Marlow
Justice of the Supreme Court