WALLACH v. ROTHSCHILD (2025)

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated February 27, 2024.  The order denied the defendant's motion for recusal.

ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, with costs, and the defendant's motion for recusal is granted.

The defendant in this action for a divorce and ancillary relief moved for recusal based upon the marital relationship between Justice Eisenpress's principal law clerk and a named partner at Rosenblatt Warren LLP, one of the law firms representing the plaintiff.  By order dated February 27, 2024, the Supreme Court denied the motion, and the defendant appeals.

“Absent a legal disqualification under Judiciary Law § 14, a Trial Judge is the sole arbiter of recusal” (People v. Moreno, 70 N.Y.2d 403, 405, 521 N.Y.S.2d 663, 516 N.E.2d 200).  “The decision is a discretionary one and is within the personal conscience of the court” (Matter of Independence Party State Comm. of State of N.Y. v. Berman, 20 A.D.3d 423, 424, 799 N.Y.S.2d 90;  see People v. Moreno, 70 N.Y.2d at 405, 521 N.Y.S.2d 663, 516 N.E.2d 200).  Yet, “it may be better practice in some situations for a court to disqualify itself in a special effort to maintain the appearance of impartiality” (People v. Moreno, 70 N.Y.2d at 406, 521 N.Y.S.2d 663, 516 N.E.2d 200;  see Matter of Independence Party State Comm. of State of N.Y. v. Berman, 20 A.D.3d at 424, 799 N.Y.S.2d 90).

“ ‘[A] law clerk is probably the one participant in the judicial process whose duties and responsibilities are most intimately connected with the judge's own exercise of the judicial function’ ” (People v. Suazo, 120 A.D.3d 1270, 1272, 992 N.Y.S.2d 138, quoting Oliva v. Heller, 839 F.2d 37, 40 [2d Cir.]).  “Law clerks are simply extensions of the judges at whose pleasure they serve” (id. [internal quotation marks omitted]).

Under the circumstances of this case, including, among other things, that Justice Eisenpress would be required to decide whether to award attorneys’ fees to the plaintiff for Rosenblatt Warren LLP, “we find that it would have been ‘better practice’ for the trial judge to recuse herself ‘in a special effort to maintain the appearance of impartiality’ in this case” (Matter of Independence Party State Comm. of State of N.Y. v. Berman, 20 A.D.3d at 424, 799 N.Y.S.2d 90, quoting People v. Moreno, 70 N.Y.2d at 406, 521 N.Y.S.2d 663, 516 N.E.2d 200;  see People v. Suazo, 120 A.D.3d at 1272, 992 N.Y.S.2d 138).

The defendant's remaining contention is without merit.

IANNACCI, J.P., VOUTSINAS, TAYLOR and LOVE, JJ., concur.