Summary
In Corradino, there was no disqualification of the Trial Judge. Instead, the Court of Appeals, in a gratuitous dictum statement, stated that it was better practice for the court to disqualify itself where the attorney for one of the parties had been associated with the Trial Judge prior to her designation to the Bench.
Summary of this case from Murray v. MurrayOpinion
Argued November 12, 1979
Decided December 11, 1979
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, BETTY D. FRIEDLANDER, J.
L. Richard Stumbar for appellant.
Robert J. Clune for respondent.
MEMORANDUM.
We affirm, with costs, for the reasons stated on the opinion of Mr. Presiding Justice A. FRANKLIN MAHONEY at the Appellate Division ( 64 A.D.2d 320). As the court said in Matter of Nehra v Uhlar ( 43 N.Y.2d 242, 251), "Priority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement" (emphasis supplied).
We would also note that, because the attorney for the petitioner husband was associated with the same law firm as was the Trial Judge prior to her designation to the Bench, the respondent wife asked the Judge to recuse herself. That application was denied. Though there is no canon of judicial ethics which specifically requires disqualification under these circumstances, we believe it the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed, with costs, in a memorandum.