The case is Fulton Market Retail Fish, Inc. v. Todtman, Nachamie, Spizz and Johns, 2018 NY Slip Op o1o38 (Appellate Division First Department).
Plaintiffs, who sued their lawyers for legal malpractice, were concerned that the same judge who heard the underlying case was going to hear the legal malpractice case. They waited ten months after bringing the case to move for recusal. The court explained:
Plaintiffs’ claims are undermined by the fact that, while they argue that the court made biased rulings in the underlying landlord-tenant litigation, they never moved for recusal in that lawsuit, which lasted over a decade (see Glatzer v Bear, Stearns & Co., Inc., 95 AD3d 707 [1st Dept 2012]). Even after the same justice was assigned to the instant action, plaintiffs did not move for recusal until 10 months after the case commenced, and then only after the court, at oral argument on a motion to dismiss, questioned the viability of plaintiffs’ legal malpractice claim on collateral estoppel grounds.
A recusal motion faces a very tough burden. Here, the delay further weakened the motion for recusal, causing it to be denied and causing the Appellate Division to affirm the denial. The court also brushed aside concerns about the trial judge’s comments about the recusal motion. The judge’s comments were not enough to warrant recusal.
Ed Clinton, Jr.