Opinion 16-11

January 28, 2016


Digest:         A judge who is a defendant in a bank’s foreclosure action in an individual and fiduciary capacity may nonetheless preside over an unrelated action in which a party has subpoenaed records from the bank, including a party’s motions to quash the subpoena, provided the bank is not a party to the action before the judge but is only a stakeholder which has not appeared or taken a position regarding the subpoena.


Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.4(D)(2); 100.4(E)(1); 100.3(F); Opinions 13-64; 10-168; 10-96; 09-12; 07-206; 04-02; 95-38; People v Moreno, 70 NY2d 403 (1987).


         The inquiring judge, while presiding over the custody phase of a matrimonial action, denied one parent’s motion to quash a subpoena on a non-party bank. The parent moved to re-argue, but the bank made no application with respect to the subpoena. After the re-argument motion was briefed and argued, but before the judge issued a decision, the bank served the judge with process in an unrelated foreclosure action, in the judge’s individual and fiduciary capacity as the sole heir and administrator of the judge’s deceased relative’s estate.1 Through an attorney, the judge has commenced discussions with the bank regarding a possible short sale of the real property. The bank, which is essentially a non-party stakeholder in the matrimonial action, is now also the plaintiff in an adversarial, but unrelated foreclosure proceeding which involves the judge. The judge plans to disqualify him/herself from any matters in which the bank appears as a party for the duration of the foreclosure proceeding, but asks about his/her obligations where, as here, the bank is a non-party who has been served with a subpoena but has not appeared nor requested any relief. More specifically, the judge asks whether he/she may continue to preside in the custody trial and decide the renewed motion to quash under these circumstances, as the motion to reargue the motion to quash is sub judice, and the trial has been adjourned pending the Committee’s decision.


         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Although a full-time judge is subject to many limitations on his/her fiduciary and business activities, he/she may hold and manage investments of the judge and his/her family, including real estate (see 22 NYCRR 100.4[D][2]), and may serve as administrator for a family member’s estate (see 22 NYCRR 100.4[E][1]). A judge is disqualified in a proceeding in which the judge’s impartiality might reasonably be questioned (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14), including where the judge individually or as a fiduciary has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]). Such disqualification is subject to remittal in appropriate circumstances (see 22 NYCRR 100.3[F]; Opinions 13-64).

         Preliminarily, the Committee observes that the inquiring judge plans to disqualify him/herself from any cases in which the bank is a party during the pendency of the foreclosure proceeding (see Opinion 10-96 [suggesting disqualification subject to remittal]), but is apparently uncertain about his/her obligations afterward. Once the foreclosure proceeding is over, there should be mandatory disclosure for two years when the judge’s former party-opponent (the bank) appears before the judge as a party, but with disqualification solely in the judge’s discretion (see Opinions 10-168; 07-206).

         The primary focus of the present inquiry, however, is on the judge’s obligations in matters where the bank is a subpoenaed non-party stakeholder. Under the circumstances presented, the judge’s private involvement with the bank regarding the mortgage, in protection of the judge’s interests as an individual and a fiduciary (cf. Opinions 09-12; 04-02), does not reasonably raise a question as to the judge’s impartiality and independence in the custody trial, where the bank is a mere stakeholder. As the bank is not a party to the matrimonial proceeding or custody trial, has taken no position on the subpoena, and has not even appeared, a reasonable observer must conclude that the bank has no interest in the outcome of either the original motion to quash the subpoena or the current motion to re-argue it (cf. Opinion 95-38 [judge sued solely in his/her capacity as a stakeholder]).

         Absent any indication that the non-party bank has some interest in the outcome of the motion to quash, or any other cognizable interest in the action before the judge, it is most difficult to see how the judge’s impartiality could be questioned, merely because the judge is adverse to the bank in an entirely unrelated case. That is, since the ultimate disposition of the motion to quash and the underlying matrimonial action does not matter to the bank, the judge’s rulings in that case could not reasonably affect, or even appear to affect, the bank’s handling of the foreclosure proceeding. Surely the inquiring judge can have no impermissible interest in the case before him/her indirectly through the bank, where the bank itself has no interest (see 22 NYCRR 100.3[E][1][c]).

       As the judge’s impartiality cannot reasonably be questioned in the matrimonial action or the custody trial, the judge “is the sole arbiter of recusal” under these facts (People v Moreno, 70 NY2d 403, 405 [1987]). Therefore, neither recusal nor disclosure is required, as long as the judge can be fair and impartial.


         1 There is no connection between the judge’s deceased relative’s real property, which is the subject of the bank’s foreclosure action, and the parties, attorneys, issues, or property in the matrimonial action before the judge. The Committee also notes that the foreclosure proceeding does not involve the judge’s personal residence.