In this foreclosure action, plaintiff's counsel moves for an order of reference, but I

am compelled to recuse myself. Plaintiff's attorney is Berkman, Henoch, Peterson & Pedddy, P.C. I am a petitioner in an Article 78 proceeding. In that action, the Hon. Mark Weprin, of the 24th Assembly District in Queens, is a member of a respondent, the New York State Assembly. He is also of counsel to Berkman, Henoch.

Nassau County District Court Judge Edward Maron, Nassau County Supreme Court Justice Joseph De Maro, and I are petitioners in an Article 78 proceeding against Governor Eliot Spitzer, the Assembly, Assembly Speaker Sheldon Silver, the State Senator, State Senate Majority Leader Joseph Bruno, Comptroller Thomas Di Napoli and the Office of Court [*2]Administration, for, among other things, their continued violation of the New York State Constitution, by allowing diminishment of judicial compensation by inflation during our term of office. New York States judges have not had a pay increase for more than nine years. Assembly Member Weprin, unlike myself and my fellow New York State judges, is not precluded from earning additional income. Mr. Weprin, according to the Office of Court Administration's Attorney Registry, lists Berkman, Henoch's Garden City, New York office as his "business address." A visit to Berkman, Henoch's website, www.bhpp.com, shows that Mr. Weprin is of counsel to the firm. Since Mr. Weprin is a member of on one of the respondents in my lawsuit, it would be equally improper for me, as a petitioner in a separate action against the New York State Assembly, to deny plaintiff's application for an order of reference by plaintiff's counsel, Berkman, Henoch, or to issue an order of reference in favor of plaintiff and plaintiff's counsel, Berkman, Henoch.

In late December 2006, I became a petitioner in a Nassau County Supreme Court Article 78 proceeding (EDWARD A. MARON, ARTHUR SCHACK, and JOSEPH DE MARO v SHELDON SILVER, as Speaker of the New York State Assembly, NEW YORK STATE ASSEMBLY, JOSEPH BRUNO, as the Temporary President of the New York State Senate, NEW YORK STATE SENATE, GEORGE PATAKI, as Governor of the State of New York, "JOHN DOE" as the Acting Comptroller of the Sate of New York, and the OFFICE OF COURT ADMINISTRATION, Index Number 21984/06). The venue of this action was subsequently transferred to Albany County Supreme Court, Index Number 4108/07. The caption has been amended to replaced "GEORGE PATAKI, as Governor of the State of New York" with "ELIOT SPITZER, as Governor of the State of New York," and " John Doe' as the Acting Comptroller of the State of New York" with "THOMAS DINAPOLI as the Comptroller of the State of New York." This action seeks, among other things, a determination that:the Legislatures's 2006-07 appropriation for judicial pay raises were final and complete; judges' compensation has been unconstitutionally diminished in violation of Article VI, § 25(a) of the New York State Constitution; and respondents' improper linkage of judicial salary increases with unrelated legislative initiatives, among other factors, violates the equal protection clause of Article I § 11 of the New York State Constitution.

I hope that Mr. Weprin, as well as his Berkman, Henoch and legislative colleagues are cognizant of the plight of the New York State judiciary. Chief Judge Judith Kaye (State of the Judiciary? Pay Crisis is Taking its Toll, NYLJ, Jan. 28, 2008, at 11, col 1) recently commented on the lack of action by Berkman, Henoch's counsel, the Hon. Mark Weprin, and his legislative colleagues:

Now in the 10th year with no adjustment whatsoever, New

York has dropped from 48th to 49th among the nation's state judiciaries

in compensation (adjusted for cost of living) . . . No judge anywhere has

gone as long as we have at absolutely frozen compensation. Not even a

cost-of-living increase, as the cost of living soars.

The literature these days is filled with articles on judicial

independence. The Judiciary's independence of the other political

branches is a strength of our democracy. Yet here we are, once again

begging and pleading before the Executive and Legislature, on bended [*3]

knee, hat in hand, no seat at the negotiating table, nothing to trade

or barter with them. Is this the posture of judicial independence?

I think not.

All of our partners in government favor the proposed judicial

salary increases, to the penny, yet nothing happens. And the only

explanation is a process that holds our compensation hostage to other,

entirely unrelated measures. So we remain locked in the jaws of

Albany politics . . .

. . . We are thoroughly demoralized, frustrated, angry . . .

What has hit the New York State Judiciary so especially hard

is the disdain with which we are treated.

Judge Bellacosa, for a unanimous Court of Appeals (People v Moreno, 70 NY2d 403, 405 [1987]) instructed that "[a]bsent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal." The Court, in Schwartzberg v Kingsbridge Heights Care Center, Inc., 28 AD2d 465, 466 (2d Dept 2006), held that "[i]n the absence of a legal disqualification under Judiciary Law § 14, a trial judge is the sole arbiter of the need for recusal, and his or her decision is a matter of discretion and personal conscience (see People v Moreno, 70 NY2d 403, 405)." In Poli v Gara, 117 AD2d 786, 788-789 (2d Dept 1986), the Court stated that "[t]he question of whether a Judge should recuse himself to avoid an appearance of impropriety is a matter left to the personal conscience of the court (e.g., Matter of Johnson v. Hornblass, 93 AD2d 732 [1d Dept 1983]; Casterella v. Casterella, 65 AD2d 614 [2d Dept 1978]). (See People v Fischer, 143 AD2d 1036 [2d Dept 1988]; People v Gallagher, 158 AD2d 469 [2d Dept 1990]; Warm v State, 265 AD2d 546 [2d Dept 1999]; In re Jimmy H., 274 AD2d 430 [2d Dept 2000]; People ex rel. Smulczeski, ex rel. Smulczeski v Smulczeski, 18 AD3d 785 [2d Dept 2005]; Tornheim v Tornheim, 28 AD3d 534 [2d Dept 2006]; Montesdeoca v Montesdeoca, 38 AD3d 666 [2d Dept 2007]; Kupersmith v Winged Foot Gold Club, Inc., 38 AD3d 847 [2d Dept 2007]).

To avoid any potential appearance of impropriety in the instant case, sine Assembly Member Mark Weprin is of counsel to Berkman, Henoch, plaintiff's counsel, I must recuse myself from this matter. If I were to deny the instant application for an order of reference it could be construed as retaliation against the Legislature by an aggrieved judge. Conversely, if I were to grant the instant application for an order of reference, it could be perceived as an attempt to curry favor with Mr. Weprin and his 211 colleagues in the New York State Assembly and Senate. I know I can be fair and impartial in deciding the instant application for an order of reference. However, in the exercise of discretion and good conscience, and to avoid any speculation as to the rationale for my ruling, I must recuse myself from this case.

Accordingly, it is

ORDERED, that I recuse myself forthwith from the instant action.

This constitutes the Decision and Order of the Court.

ENTER

__________________________

Hon. Arthur M. Schack [*4]

J. S. C.