Avery vs. Caldwell

Should a judge recuse himself or herself in a proceeding involving a dispute about ownership of an apartment in a building where the judge is a co-op owner? The answer was a clear “no” in Avery vs. Caldwell when Supreme Court Justice Emily Jane Goodman saw no reason to recuse herself.

The underlying proceeding involved a dispute between two individuals regarding money paid for the purchase of an apartment, their relative interests, and their original intentions. The court previously denied plaintiff’s motion for a default judgment, calling it “incomprehensible” when defendant’s then-counsel was late in answering the complaint because of his ill health. However, the litigation was decidedly contentious, lacking, as observed by the court, the expected collegiality and professionalism.

The plaintiff was Dennis Avery, an attorney who resided in California and whose daughter purchased an apartment with another woman with whom she had a domestic relationship that had now ended; plaintiff sought to establish or clarify his own financial interest in the money originally used to purchase the apartment of his daughter and her former partner. The defendant was the former domestic partner, Molly Caldwell.

Upon discovering that the apartment was in the same building where the judge resided and in which she owned shares, Judge Goodman made disclosure to counsel for both parties. The judge also informed them that she did not know their clients or plaintiff’s daughter, had never met them, and, in a building of roughly 150 units, had no connection to them whatsoever. Moreover, the issue did not involve the building, but rather a divorce-like dispute in which one of the parties was actually the parent of one of the partners; the situation was also variously characterized as involving a loan or an investment by the plaintiff’s father.

Upon the disclosure of the judge’s personal residence, Yetta Kurland, counsel for plaintiff, wrote an accusatory letter to the court carelessly (and ungrammatically) stating: “You have a financial interest in the outcome of this matter, i.e., sale of shares of a corporation that you are an owner of, and because defendant Molly Caldwell is a real estate broker who sells apartments in the building.”

At oral argument on the issue of recusal, Kurland denied writing the above-quoted letter despite it being on her letterhead and bearing her signature, but eventually acknowledged it as hers, claiming, however, that she hadn’t really meant to send it to the court.

The judge informed all the attorneys that she saw no way that anything in this case could affect or benefit her or could be detrimental to her inasmuch as it involved the parties’ obligation (if any) to each other, not the unit itself or any economics surrounding it. Therefore, the judge concluded that she had no conflict of interest, potential conflict of interest, or any rational appearance of a conflict of interest.

If recusal were nevertheless sought, counsel was directed to make a motion and to submit exactly what the court’s “financial interest in the outcome of this matter,” would be, and to support, with law, what the basis would be for recusal under these circumstances, and how the court could possibly have a personal interest in the outcome of the case and could benefit or be harmed financially or in any other way.

Subsequently, Kurland did move for recusal, even suggesting mandatory statutory recusal but submitting no law or facts that would support recusal. Nor was there any explanation or analysis as to how the dispute between attorney Avery and his daughter’s former live-in partner could possibly affect the judge in a positive or negative way, or have any impact on her, the building, the corporation, or the shareholders. The only issue was the relative interests of the parties in the funds used to purchase the apartment following the dissolution of a personal relationship. However, there was no issue concerning the apartment itself or the shares in the corporation.

Nevertheless, Kurland, without any basis, stated that the judge’s impartiality might reasonably be questioned, and that there may be an “economic interest in the subject matter in controversy…and other interests that could be substantially affected by the proceeding.”

At the same time, Kurland agreed that “the interest must be real; it must be certain and not merely possible or contingent; it must be one which is visible, demonstrable, and capable of precise proof; it must be a present interest...”

Still, Kurland went on to say, “…there may potentially be interests of the court in this matter which would rise to the level of statutory grounds for recusal” under Judiciary Law Section 14. Kurland went further to suggest that the California plaintiff, who was the father of a shareholder of the co-op, who was in a personal relationship with the defendant, might experience potential “adversity or discomfort both during the proceedings and after, including extrajudicial contact and communications with the court.”

In the court’s view, Kurland and plaintiff raised such extraneous, even frivolous and inaccurate arguments as stating that a sale of the apartment would benefit the building and, therefore, the judge. The court said that Kurland should have been aware that the building did not have a “flip tax.”

In another frivolous argument, Kurland suggested that a conflict of interest would exist in the event that the judge served on the board of directors of the building; however, the judge noted that she did not serve on the board, had never served, and had no intention of serving.

In papers submitted, Kurland posed another hypothetical: “What if the [judge] knew them, not by name, but as the loud neighbor, the pushy neighbor, or the nice neighbor.” In response, the judge said that her apartment was at the top of the building in virtual isolation from most of the other apartments – and the participants in the case were not her neighbors.

In addition, an affidavit (on Kurland stationery) was submitted by Dennis Avery, who, although he was an attorney, stated incorrectly that the shares of the corporation “are a material element of this action and ownership of which potentially exercises control over the corporation, not just financial, but could also effects [sic] the parties’ appurtant lease and tenancy,” suggesting that the court could therefore not be impartial.

In the meantime, plaintiff’s daughter, Halina Avery, described as a “potential party,” submitted, in a surprising sworn statement, that she knew that the judge resided in the same building, saying, under oath: “I am very much aware of the Judge’s presence in the building, and I have often thought of the fact that a resident in my building will be the person deciding the fate of my home, and in a proceeding in which I may be a party.”

The judge observed that it was revealing that the concern, knowledge, and discomfort of this “potential party” was never expressed or brought to the judge’s attention through counsel, until she discovered and disclosed the coincidence. Halina Avery went on to say, “In addition, there may be other issues which may also involve Judge Goodman,” but gave no further explanation of what those issues could possibly be.

Avery’s affidavit was also on Kurland stationery and was notarized by Yetta Kurland. While that did not indicate counsel’s attesting to the veracity of the statements themselves, they may well have been prepared by Kurland; this could cause counsel to have a conflict of interest or perhaps become a witness in the future.

Despite the state of the law, and the vapid arguments, the court said that Kurland had repeated the unseemly and unprofessional accusation against the court.

In opposition to all of this, counsel for Molly Caldwell, D. Cameron Moxley, submitted that there was no basis for mandatory recusal or discretionary recusal.

The court, stating it was mindful that “a judge shall not sit as such in, or take any part in the decision of an action, claim, matter, motion or proceeding … in which [s]he is interested … ,” found nothing that would create or suggest a conflict of interests. The court was further mindful that it is within the judge’s discretion and conscience to measure her own ability to be fair and impartial that controls.

The judge concluded, unambiguously, that there was nothing in the facts, circumstances, or law that would cause her to be anything other than fair and impartial in this case and denied the recusal motion.