-against-

 Joan Morris, David Morris, et al.,
                                                   Defendants.

In this action for false arrest and other related relief, the plaintiff, an attorney, seeks my recusal on the grounds that my presiding in the action constitutes an Aappearance of impropriety@ and moves that the case be assigned to another judge. The plaintiff bases his grounds on an incident that began on September 19, 1984 when Mr. Devine appeared before me without a necktie and I refused to entertain his application until he came Aback into this room properly dressed@, by which I meant wearing a necktie. Thereafter, Mr. Devine brought an action against me in the United States District Court for the Southern District of New York alleging a violation of United States Code ' 1981 and 1983 in that I subjected him to unlawful sex discrimination, since I did not require women attorneys to wear neckties.

The matter was heard by United States District Judge Charles S. Haight, Jr, who dismissed the complaint, finding that ordering the wearing of a tie in a proceeding of which I presided was in conformity with my determination that a Amale attorney appearing without a tie is lacking in decorum.@ The judge noted that according to the Rules of the Chief Administrator of the Courts (22 NYCRR '100.3[a][2]) that a AJudge shall require order and decorum in proceeding before the Judge,@ and that my determination was made pursuant to these rules. (Devine v Lonschein 621 Fed. Supp. 894, aff=d 800 F.2d 1127)

Indeed, Judge Haight in dismissing the complaint pointed out that Auntil that dreadful day when unisex identity of dress and appearance arrives, (judges) are entitled to some latitude in differentiating between male and female attorneys, within the context of decorous professional behavior and appearance@ (Devine v Lonschein, supra, 621 F. Supp. 894,896).

The plaintiff claims that the fact that he had previously sued me for a acts done in my official capacity, creates an appearance of impropriety and partiality, so that I ought not to preside over this lawsuit. I must deny his motion for the following reasons.

It is beyond dispute that a Judge must be free from all prejudice and bias actual or implied, and be an impartial arbiter of all causes over which he or she presides (People v Diaz,130 Misc 2d 1024). A judge should disqualify himself or herself from a case A....in which the Judge's impartiality might reasonably be questioned...@(emphasis mine)(Rules of the Chief Administrative Judge, ' 22 NYCRR '100 3[c] [1] [a]). No one can better judge a judge's impartiality in fact, than the judge, and A the decision on a recusal motion is generally a matter of personal conscience@ (People v Smith 63 NY 2d 41,68). Absent statutory grounds for disqualification under the Judiciary Law '14 and the grounds set forth the Chief Administrator's rules, ' 22 NYCRR ' 100,[3][E][1][a]to[f], a judge is thus recognized to be the sole arbiter of recusal questions and the judge's decision stands unless his or her discretion is abused.(People v Moreno, 70 NY2d 403, People v Bartolomeo, 126 AD 2d 375). I have examined my conscience and can not find in it any animosity to Mr. Devine, and I harbor no ill will against him for bringing a lawsuit against me based upon his allegations that I practiced sex discrimination against him by forcing him to wear a tie, whereas I don=t force women attorneys to do the same. In fact, I must say that the whole episode of this lawsuit gave me a great deal of amusement, as I am sure it did others.

The question of whether a judge should recuse himself or herself, if sued by a litigant, has been a subject that I have commented on in the past. In Spremo v Babchik, (155 Misc 2d 796, aff=d as mod. 216AD 2d 382, leave to appeal den. 86 NY 2d 709, cert.den. 516 US 1161) I wrote the following:

AA 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. A litigant cannot be allowed to create a sham controversy by suing a Judge without justification, and to then use that sham as a means for achieving the Judge's recusal. To hold otherwise would be to give such a litigant >a license under which the judge would serve at their will.= (Davis v Board of School Commrs. 517 F2d 1044, cited in People v Diaz, 130 Misc 2d 1024; United States v Grismore, 564 F2d 929).@

For me to grant or deny this motion to recuse myself really is not a choice for me to make. Rather I must deny it as a requirement under the law. Since in examining my conscience, I harbor no ill will against Mr. Devine, I am thus under an affirmative duty to preside and may not recuse myself . As was said by Judge John Sirica who presided over the historic Watergate case when called upon to recuse himself when confronted with allegation of prejudice and bias:

A...The Court cannot overlook the fact that it has an obligation to deny insufficient recusal motions. >There is as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is.= (citations omitted)...After such study as I could give the matter, I reached the conclusion that whether a judge should recuse himself in a particular case depends not so much on his personal preference or individual views as it does on the law, I have no choice in this case...In the absence of a valid legal reason, I have no right to disqualify myself and must sit.= (United States v Mitchell, , 377 Fed. Supp. 1312, aff=d sub nom. Mitchell v Sirica, 502 F.2d 375, cert.den. 418 US 955).@

The parties are directed to appear before the court for a preliminary conference on May 2, 2000 at 10:00 a.m.. The conference shall be held before the court directly in Courtroom 67 of the General Courthouse, Jamaica and not before a Judicial Hearing Officer at the Office of the Corporation Counsel.

                                                                                                                        ________________________

                                                                                                                                                J.S.C.