Opinion
24516/08.
Decided January 5, 2009.
In this personal injury action, on December 19, 2008, I granted upon the default of defendant Brookdale University Hospital Medical Center [BROOKDALE] plaintiff's order to show cause to obtain the complete medical records of plaintiff Harold Smith [SMITH] for his admission at BROOKDALE in October 2007. BROOKDALE was "ordered to provide Weitz Luxemberg with the entire certified hospital record for plaintiff Harold Smith within 20 days." For reasons unknown to the Court, BROOKDALE during the Court's holiday recess, shipped three large sealed Federal Express envelopes containing the records to my chambers, instead of to plaintiff's counsel, Weitz Luxemberg, P.C. Weitz Luxemberg, P.C. may send a representative to my chambers to retrieve the records, which remain sealed in the three large Federal Express envelopes.
Further, I must recuse myself from this action. Today, Gary R. Klein, Esq., Managing Attorney of Weitz Luxemberg, P.C., called my Principal Law Clerk, Ronald D. Bratt, Esq. about not receiving the BROOKDALE medical records. Also, Mr. Klein faxed to my chambers a request to retrieve the records on Weitz Luxemberg, P.C.'s letterhead. The letterhead names Sheldon Silver "of counsel." This is the same Sheldon Silver who is a Member of the New York State Assembly for the 64th Assembly District and the Speaker of the New York State Assembly. I am one of the petitioners in an Article 78 proceeding seeking a judicial pay raise. Mr. Silver is the lead named respondent and a member of respondent New York State Assembly.
While a judge does not have to give a reason or reasons for his or her recusal, I believe it is necessary to explain my reasons.
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 DI NAPOLI 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.
Justice Thomas J. McNamara, Supreme Court, Albany County, reserved decision on a variety of motions in the action, on September 7, 2007. In his decision, entered on December 7, 2007, he partially granted certain portions of respondents' motion to dismiss the petition.
Both sides appealed to the Appellate Division, Third Department. Oral argument was heard on September 3, 2008, and the Court issued its 4 — 1 decision on November 13, 2008. While the majority decision of Justice Mercure dismissed the petition, the majority held that "New York judges deserve a pay raise — it is undisputed that they do." Justice Peters, in her partial dissent, would have allowed the separation of powers claim to proceed.
My co-petitioners and I are contemplating an appeal of the Third Department's judgment to the Court of Appeals.
Speaker Silver, according to the Office of Court Administration's Attorney Registry, lists 180 Maiden Lane, 17th floor, New York, NY 10038-4925 as his "business address." This is the same address on the Weitz Luxemberg, P.C. letterhead, which shows that Speaker Silver is part of the firm.
Speaker Silver has the right to earn additional income, unlike judges. Yesterday's New York Daily News, the January 4, 2009-edition, contained an article by Glenn Blain, entitled "Many New York politicians moonlight as lifeguards or real estate agents." Mr. Blain noted that "[m]ore than 110 of the 212 Senate and Assembly members make at least some extra income from outside jobs or business interests." Further, Mr. Blain quotes the Hon. Martin Golden [who has voted for judicial pay raises], "State Sen. Martin Golden, a Brooklyn Republican, said side jobs are necessary. We struggle to put our kids through school and pay our bills just like everybody else,' said Golden, who owns or co-owns rental properties." Further, Mr. Blain notes that "Assembly Speaker Sheldon Silver, a Manhattan Democrat, has long been criticized for not disclosing income or clients from the prominent trial law firm of Weitz Luxemberg."
It is high time for Speaker Silver to realize that the approximately 1300 New York State judges are working people who deserve their first pay raise in more than a decade. Senator Golden could have been talking about judges when stating that "[w]e struggle to put our kids through school and pay our bills just like everybody else."
It would be improper for me, as a petitioner in a separate action against Speaker Silver and the New York State Assembly, to adjudicate the instant matter because of the status of Speaker Silver as a respondent and a member of one of the respondents in my lawsuit, and Speaker Silver's relationship with the firm representing plaintiff SMITH in the instant action.
I hope that Speaker Silver, as well as his Weitz Luxemberg, and legislative colleagues are cognizant of the plight of the New York State judiciary. A judicial pay raise bill passed the Senate on April 30, 2007, but never made it to the floor of the Assembly. This bill, as reported by Joel Stashenko, in his May 1, 2007 New York Law Journal article, " Senate Passes Raise for Judges But Future of Bill Is in Doubt," was in the words of then Chief Judge Judith S. Kaye, "caught, trapped and ensnared in the jaws of Albany politics." Mr. Stashenko reported that
All but one Senate Democrats, who had all agreed to sponsor the pay raise bill when it was introduced last week, abruptly pulled their names off the bill yesterday morning. Senate Minority Leader Malcolm Smith said the Senate has approved some reforms but can do more, including the adoption of a campaign finance reform bill that Democratic Governor Eliot Spitzer has been promoting. While the Senate had enough votes to pass the bill yesterday, 34-24, its abandonment by Senate Democrats put the fate of the measure in doubt nevertheless. Mr. Spitzer's spokesman Darren Dopp said following the vote that the governor would veto the bill if it reaches his desk, and the 33 Senate Republicans are nine votes shy of the 42 votes necessary to override a veto. Few, if any, of the 29 Democrats are considered likely to join Republicans in voting to override a veto by the Democratic governor . . .
Chief Judge Kaye asked the judges, members of the 13 organizations representing judges in the state court system, to attend the ceremony in a show of solidarity with her and to demonstrate how crucial the judiciary believes the pay increase is.
In her speech, she said judges were "shocked and dismayed" when the state Legislature completed adopting the 2007-08 state budget on April 1 without including a judicial pay increase.
"No raises for the judges, no retroactivity, not even cost-of-living increases for no reason that is related to us, or to the merit of our cause and absolutely nothing that is within our power to change," the chief judge told a wind-blown gathering of more than 300 people, double the normal turnout for Law Day in Albany. "Tell me, does anyone wonder why we are upset? Could there be any question as to why the judges of the New York state courts are upset, distressed, angered?"
Almost one year ago, then Chief Judge Kaye ( State of the Judiciary? Pay Crisis is Taking its Toll, NYLJ, Jan. 28, 2008, at 11, col 1) commented on the lack of action by counsel for Weitz Luxemberg, P.C., the Hon. Sheldon Silver, 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 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) 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, since Speaker Silver is of counsel to Weitz Luxenberg, P.C., plaintiff's counsel, I must recuse myself from this matter. If I were to deny any future motions or orders to show cause on behalf of plaintiff it could be construed as retaliation against the Legislature by an aggrieved judge. Conversely, if I were to grant any future motions or orders to show cause on behalf of defendant, it could be perceived as an attempt to curry favor with Speaker Silver and his 211 colleagues in the New York State Assembly and Senate. I know I can be fair and impartial in deciding any future motions or orders to show cause in the instant matter. However, in the exercise of discretion and after searching my conscience, and to avoid any speculation as to the rationale for any future rulings in the instant matter, I must recuse myself from this case.
I hope that Speaker Silver will allow the judges of this state to receive their first pay raise in more than a decade. Thanks to our legislators, including Speaker Silver, New York State judges are the "Rodney Dangerfields" of government. A pay raise would help to give us a little respect instead of, as said last year by then Chief Judge Kaye, "the disdain with which we are treated."
Conclusion
Accordingly, it is
ORDERED, that I recuse myself forthwith from the instant action.
This constitutes the Decision and Order of the Court.