This motion, familiarity with which the Courtroom assumes, arises out of a years-long investigation that plaintiff, the Workplace of the Lawyer Normal of the State of New York (“OAG”), performed into sure enterprise practices that defendants engaged in from 2011 by 2021. OAG alleged that the person and entity defendants dedicated repeated and chronic fraud by making ready, certifying, and submitting to lenders and insurers false and deceptive monetary statements, thereby violating New York Govt Regulation § 63(12).
In a Determination and Order dated September 26, 2023, this Courtroom granted plaintiff abstract judgment solely on legal responsibility and solely on the primary reason for motion.
On February 16, 2024, following a three-month trial, this Courtroom issued a Determination and Order After Non-Jury Trial discovering defendants liable on the remaining six causes of motion. The Courtroom ordered sure injunctive aid, together with the continuation of the Hon. Barbara Jones (ret.) as an Impartial Monitor of the Trump Group, which obligates the Courtroom to keep up jurisdiction over this motion regardless of the trial’s conclusion.
On Might 8, 2024, NBC New York reported that Adam Leitman Bailey, Esq., a lawyer with no connection to this case, boasted that a number of weeks earlier than I issued the Determination and Order After Non-Jury Trial, he “approached the choose presiding over Donald Trump’s civil fraud case to supply unsolicited recommendation in regards to the legislation at situation within the case.”
On July 11, 2024, this Courtroom so-ordered, partly, defendants’ subpoena to Bailey, directing him to reveal any paperwork or communications in his possession that contain, focus on, or in any approach check with this motion.
Defendants now transfer, pursuant to 22 New York Administrative Code § 100.3(E)(1), for me to recuse myself, or, within the various, for an evidentiary listening to earlier than one other justice on the communications and their potential influence on the Courtroom’s choice.
The Unsolicited Ex-Parte Communication
Someday in or about February of this 12 months, a number of weeks earlier than I issued the Put up-Trial Determination and Order, on the finish of the enterprise day, I left my robing room within the courthouse at 60 Centre Avenue and rode an elevator all the way down to the primary ground. There, on the outskirts of the well-known rotunda, Bailey accosted and began haranguing me about Govt Regulation § 63(12). He didn’t relay any alleged info.
{In fact, the irony right here is that defendants, whose place Bailey was ostensibly selling, is shifting for me to recuse myself, and plaintiff, whose place Bailey was ostensibly controverting, opposes the movement. This means that defendants should not motivated by moral issues however, quite, search a chance to reverse the trajectory and consequence of this case.}
Previous to that point, I thought-about Bailey knowledgeable acquaintance and a distant buddy. His sudden look and vehement speech took me aback, and I merely instructed him that he was incorrect. He trailed after me, nonetheless droning on, as I descended the Decide’s stairs to the road stage. I entered my car with out saying one other phrase (besides, maybe, “goodbye”) and departed.
For about three and a half years previous to this disagreeable incidence, beginning in September 2020, I had researched § 63(12) intensely and had issued many rulings, together with preliminary injunction and abstract judgment choices, primarily based on it. I definitely didn’t want a landlord-tenant lawyer ranting about it. I didn’t provoke, welcome, encourage, have interaction in, or be taught from, a lot much less get pleasure from, Bailey’s tirade. I didn’t base any a part of any of my rulings on it, as Bailey has outlandishly, mistakenly, and defamatorily claimed. All the 90-second incident, after three and a half years of finding out and being immersed in § 63(12), was, to make use of the vernacular, a “nothingburger.” I’d have forgotten all about it by now had Bailey not tried to burnish his status as somebody who might affect judges (which might be unethical, and presumably unlawful, however of which Bailey nonetheless publicly boasts).
On account of in depth information protection of the topic trial, passersby typically acknowledge and confront me on the road, at events, in parks, in eating places, and on public transportation. Typically their unsolicited phrases are complimentary. Typically they’re derogatory. By no means do they have an effect on my rulings. As with my compelled encounter with Bailey, I really feel no have to report these fleeting incidents.
Defendants purport to depend on the rule {that a} choose might seek the advice of an knowledgeable solely underneath sure situations. I didn’t seek the advice of Bailey, and I definitely don’t think about him an knowledgeable on Govt Regulation § 63(12)….
Defendants’ Arguments
In help of their movement, defendants cite to an array of opinion editorials and blogs (from The Wall Avenue Journal OpEd, Nationwide Evaluate, Newsmax, New York Put up, YouTube movies, and The Volokh Conspiracy) critiquing this Courtroom’s authorized rulings, which defendants collectively use as “proof” that “this Courtroom’s closing judgment has definitely imperiled public confidence within the integrity of the New York authorized system.” As this Courtroom has already detailed in a previous order denying defendants request for a mistrial, “editorial opinions that denounce plaintiff’s case … are irrelevant and of no evidentiary worth.”
Additional, the instances defendants cite in help of recusal don’t advance their trigger.
Defendants purport to depend on Matter of George (N.Y. 2013), to help their declare that the conduct alleged right here is “antithetical to the function of a choose.” There, the choose presided over a matter through which he had shut private, skilled, and monetary ties to a celebration, with out disclosing the connection. As with every case defendants cite on recusal, the info are wholly distinguishable from these herein.
Defendants additionally purport to depend on Matter of Levine (N.Y. 1989), through which the choose adjourned proceedings in favor of 1 get together, and “by his conduct … conveyed the impression in an ex-parte communication that his rulings wouldn’t be primarily based on benefit however on his allegiance and loyalty to [a] former political chief.” Right here, the Courtroom primarily based its rulings on the legislation and the info, not politics, and nothing in Bailey’s ill-advised statements to the media point out in any other case.
Defendants additionally cite to Matter of Ayres (N.Y. 2017), through which the presiding choose repeatedly initiated ex-parte conversations in an try and affect a good disposition of his daughter’s site visitors ticket. I didn’t provoke the encounter, I didn’t converse, and neither I nor any of my relations have a private curiosity on this case.
In Individuals v Lester (N.Y. Simply. Ct. 2002), the choose obtained an ex-parte communication at his house from a celebration to the continuing.
In Matter of VonerHeide (N.Y. 1988), the choose routinely sought out and interviewed witnesses exterior of courtroom and dominated primarily based on their unsworn communications.
Defendants’ reliance on Matter of Fuchsberg (N.Y. Jud. Ct. 1978), is misplaced, as in that case the choose presided over a matter through which he had an undisclosed monetary curiosity, and through which the Decide consulted with legislation professor colleagues on at the least 12 instances pending earlier than him.
In Matter of Murphy (N.Y. 1993), the choose was “careles[s] in dealing with public moneys” deposited into Courtroom….
In sum, all of defendants’ instances are manifestly distinguishable, merely inapposite, or denied recusal.
Lastly, defendants emphasize their declare that “this Courtroom, primarily based on public reporting, can also be now apparently underneath investigation by the Fee on Judicial Conduct.” Nevertheless, the Fee has not contacted me, nor I’m conscious of any such investigation. An unsubstantiated allegation of an investigation can’t require disqualification.
Dialogue
“It’s settled that ‘absent a authorized disqualification underneath Judiciary Regulation § 14, a Trial Decide is the only real arbiter of recusal.'”
As no grounds for obligatory recusal exist right here, it’s as much as me and my conscience to find out whether or not this 90-second, unsolicited diatribe a few legislation with which I used to be absolutely acquainted and through which I used to be absolutely immersed, by a non-party and non-expert who conveyed no info, in any approach affected my adjudication of a dispute over which I had presided for 3 and a half years, throughout which period I had already issued a number of dispositive choices. I hereby definitively state that it didn’t.
Immediately on level, the Advisory Committee on Judicial Ethics has opined {that a} choose just isn’t ethically obligated to reveal an tried ex-parte communication from a non-party who alleges no related info, however merely expresses a view as to how a matter ought to be determined, and which isn’t thought-about by the choose. Advisory Opinion 98-144, out there at https://www.nycourts.gov/ipjudicialethicsopinions/98-144_.htm
Moreover, “[n]o choose might recuse primarily based upon wrongful acts allegedly dedicated by another particular person.” R&R Capital LLC v Meritt (N.Y. Sup. Ct. 2008) (stating “[b]ecause this Courtroom holds no bias for or towards any get together to this dispute, however has expressed in our dedication of the problems put earlier than us who shall be the prevailing facet, there isn’t any foundation upon which recusal could also be granted”). Accordingly, recusal primarily based on the only real actions of Bailey, which didn’t affect my choices, is unwarranted.
Furthermore,
[W]hen there isn’t any floor for recusal, recusal shouldn’t be ordered, particularly when prejudice will outcome. Certainly, “‘[a] choose has an obligation to not recuse himself or herself, even when sued in connection along with his or her duties, except she or he is glad that she or he is unable to serve with full impartiality, in truth or look.'”
I’ve been presiding over this motion, and the particular continuing that preceded it, for over three and a half years. The 2 dockets have a mixed 2,624 separate entries. I’ve reviewed tens of 1000’s of paperwork in digital camera (and out), all through in depth disclosure, movement observe, and the trial. To recuse myself now would lead to immense prejudice to the events, the general public, and the judicial course of.
I’m supremely assured in my capability to proceed to serve, as I at all times have, impartially.
Various Reduction Sought
As an alternative choice to recusal, defendants request an evidentiary listening to, earlier than one other justice of the Courtroom, “on the veracity of Mr. Bailey’s allegations and the Courtroom’s and [the Office of Court Administration’s] denial.” In help of their request, defendants cite to a string of instances that, by defendants’ personal description, have “held that an legal professional accused {of professional} misconduct should have a chance to confront the witnesses and topic them to cross-examination.” Nevertheless, such a rule would give standing solely to Bailey, who’s accused of wrongdoing, to confront witnesses towards him in an inquiry into his alleged skilled misconduct. These instances do nothing to advance the aid defendants search herein….
