September 03, 2019

Motion seeking the recusal of the Supreme Court Justice presiding over a CPLR Article 75 action


Petitioner [Employer] commenced this proceeding in Supreme Court pursuant to CPLR Article 75 to vacate an arbitration award that concluded that Employer had improperly terminated the employment of member of the negotiating unit represented by the employee organization [Union]

Supreme Court granted the Employer's petition and vacated the arbitration award. The Union and the terminated employee  then asked [1] the Supreme Court Justice who had presided over this Article 75 action to recuse herself; and [2] an order to vacate the order and judgment earlier issued by her. The Justice denied the motion. 

Mandatory disqualification of a Supreme Court Justice pursuant to Judiciary Law §14 is required where the trial judge presiding over any claim is "related by consanguinity or affinity to any party to the controversy within the sixth degree."

The Appellate Division explained that the record did not show that any person related to the challenged Supreme Court Justice was a party to Article 75 proceeding and thus mandatory disqualification pursuant to Judiciary Law §14 was not required

Turning to the Code of Judicial Conduct Canon, 3(E)(1)(d)(i), which concerns a judge recusing himself or herself as a matter of the exercise of his or her discretion, the Appellate Division said that this provision addresses a judge decision to decline "self-disqualification" or reject a motion to do so.

As to the question of discretionary recusal, the Appellate Division again agreed with the Supreme Court Justice's denial of the motion seeking her recusal based on alleged impropriety or bias. The Appellate Division's decision notes that in the absence of a legal disqualification under Judiciary Law §14, "the determination concerning a motion seeking recusal based on alleged impropriety, bias, or prejudice is within the discretion and the personal conscience of the court." 

Such recusal, opined the Appellate Division, as a matter of due process, "is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist." 

Accordingly, said the court, the denial of a recusal motion will constitute an improvident exercise of discretion only where the moving party puts forth demonstrable proof of the judge's bias or prejudgment and here there was no evidence in the record demonstrating that  the Supreme Court Justice had any improper interest in the outcome of the Article 75 proceeding or harbored actual bias against the Union or its member so as to warrant the conclusion that her denial of their recusal request was an improvident exercise of discretion.

* "First cousins twice removed" constitute the sixth degree of consanguinity.


The decision is posted on the Internet at:




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