Opinion 22-82

July 19, 2022

Dear :

         This responds to your inquiry (22-82) asking whether you may rule on a cross-motion for sanctions, where the basis for sanctions is counsel’s “filing of a frivolous motion” for your recusal based on “misleading and false” allegations about your conduct, which counsel also repeated in a complaint to the Commission on Judicial Conduct.

         We have previously advised that an attorney’s decision to file a complaint with the Commission on Judicial Conduct does not, by itself, require the judge’s disqualification. Therefore, a judge may preside in cases involving the attorney who reported the judge to the Commission on Judicial Conduct, provided the judge can be fair and impartial, even if the complaint remains pending and the Commission is investigating the matter. However, disqualification is required if the Commission has formally charged the judge with misconduct in a formal written complaint under Judiciary Law § 44(4).

Accordingly, you may rule on a cross-motion for sanctions where counsel has filed a motion for your recusal and filed a complaint to the Commission on Judicial Conduct, provided the Commission has not formally charged you with misconduct in a formal written complaint.

         Enclosed for your reference are Opinions 17-17; 16-129; 20-163; 16-141.

                                       Very truly yours,

                                       Margaret Walsh

                                                Justice of the Supreme Court

                                                Committee Co-Chair

                                               Lillian Wan

                                               Associate Justice

                                       Appellate Division, Second Department

                                       Committee Co-Chair

Encls.