Opinion 25-162

November 6, 2025

Digest:  Once a surrogate becomes aware that he/she has personal extra-judicial knowledge of an apparently material fact that was omitted from the petition in an uncontested probate proceeding, the surrogate must disqualify from the matter.  The surrogate may not take any further action in the proceeding.

Rules:   Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(e); Opinions 20-82/20-86; 20-22.

Opinion: 

          The inquiring surrogate recently became aware that he/she has personal extra-judicial knowledge of an apparently material fact that was omitted from the petition in an uncontested probate proceeding.  Indeed, the judge is concerned that omission of this fact may result in harm to certain beneficiaries of the estate.  The judge is considering recusal from any further proceedings on the estate, but would also like to take steps to ensure that the beneficiaries’ interests are protected.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Therefore, a judge must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge has personal knowledge of disputed evidentiary facts concerning the proceeding (see 22 NYCRR 100.3[E][1][a][ii]) or the judge knows that he/she is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]).

          Now that this surrogate has become aware that he/she has personal extra-judicial knowledge of an apparently material fact that was omitted from the petition in an uncontested probate proceeding, he/she must disqualify from the matter to avoid even the appearance of impropriety (see 22 NYCRR 100.2; 100.3[E][1]; 100.3[E][1][a][ii]).

          At this point, because the surrogate now knows disqualification is required, he/she may not take any further action in the proceeding (cf. Opinions 20-22 [“Where a judge has a disqualifying conflict, it is not the parties’ burden to request the judge’s disqualification.  Rather, it is the judge’s burden to disqualify him/herself at the outset, even if the parties are fully aware of the conflict and do not express any concern.”]; 20-82/20-86 [once grounds for disqualification exist, “As far as the judge is concerned, he/she is disqualified.  Period.”]).

          As always, we do not comment on any legal questions (see Judiciary Law § 212[2][l]; cf. 22 NYCRR 100.2[A] [“A judge shall respect and comply with the law”]).