Insisting he is not biased against a Cozen O’Connor attorney he ruled against several times in a personal injury case, Brooklyn Supreme Court Justice Arthur Schack (See Profile) said yesterday he would nevertheless recuse himself from a retrial for appearances’ sake.
“While this Court knows that it can continue to be fair and impartial in the instant matter, in the exercise of discretion and good conscience and to avoid the appearance of impropriety, this Court recuses itself from this action,” Schack wrote in Miller v. Lewis, 11358/2009.
The judge did not address in his decision yesterday the allegation by Cozen that he had posted copies of an image of attorney John McDonough in his courtroom with the word “Wanted” printed on it, nor that he had drawn a bull’s-eye on a head shot of McDonough and used a vulgarity to describe the attorney when a Cozen colleague appeared before Schack two months after the first Miller trial had ended (NYLJ, Aug. 24).
Editor’s Note: This article has been updated to reflect a Correction.
Schack, in fact, said his court “went out of its way” to accommodate McDonough personally when scheduling conflicts arose involving the lawyer, once when McDonough needed to visit his ailing mother.
Schack in April declared a mistrial in Miller, which involves a suit brought by a woman who was severely injured when she was hit by a Duane Reade truck. The judge acted after requests from several jurors who asked to be allowed to go back to work as the case dragged into a third week.
“This Court has no bias, animus or hostility against Mr. Donough or his firm,” Schack wrote. “Indeed, as made clear by Mr. McDonough himself, on the last day of the Miller trial, this court was ‘nice,’ ‘courteous’ and ‘respectful to counsel.’”
Schack acknowledged that several rulings he made over the course of the trial went against McDonough, who represented Duane Reade, and the judge explained the reasoning behind some of them yesterday.
During the trail, Duane Reade opposed Schack’s decision to allow the jury to consider liability and damages at the same time.
“This Court’s decision in that regard was that the interest of justice in this matter would best be served by a unified trial and having the jury determine if plaintiff Shirly Miller would receive future medical care in the United States or her native Israel,” Schack wrote.
The judge said Duane Reade and Cozen themselves made the issues of liability and damages “intertwined” by the defendant’s suggestion that Miller had slipped under a wheel of the Duane Reade truck and had not been run over.
Schack also defended his denial of a motion in limine by Duane Reade to allow the testimony of an economist and a life-care planner. The judge said the question had already been decided and stipulated to by the defense before the Jury Coordinating Part prior to the case being assigned to him.
Schack also said he denied a defense motion to reopen discovery, compel the plaintiff to produce immigration documents and adjourn the trial since “the note of issue had long since been filed and the case already assigned for trial.”
And Schack defended his June 26 refusal to sign various orders embodying his motion in limine at the behest of Eric Berger, a Cozen attorney. Evan Torgan of Torgan Cooper & Aaron, which represented Miller, was not present in court when Berger made his request.
According to Cozen’s motion requesting his recusal, Schack was angered at Berger’s request to sign the orders and said, “Bullshit, I’m not signing it,” loud enough for others in the courtroom to hear.
Cozen said the judge also exclaimed, “Tell that piece of shit McDonough he should not have made you do this,” then handed Berger the headshot of McDonough with the bull’s-eye drawn around the lawyer’s face.
Schack said in his ruling yesterday that an affirmation from Berger about the judge’s June 26 comments contains “misstatements” about what occurred.
“Unfortunately, there is no record to substantiate the actual conversation and defendants’ counsel fails to present any affidavits or affirmations from any witnesses to our conversation,” the judge said.
Schack did note that in the motion against recusal filed by Torgan, an affidavit from attorney David Mayer of Sacks & Sacks, who was present in Schack’s court on June 26, denied the judge used the language attributed to him by Cozen.
Torgan yesterday repeated the contention he made in arguing against Schack’s recusal that Cozen was “judge shopping” in hopes of getting the adverse decisions made by Schack reversed by another judge.
“I am convinced of it,” Torgan said. “They certainly won that issue.”
Torgan said he was in Schack’s courtroom on April 5 when the “Wanted” signs were displayed. Torgan said he believed Schack did not mention the incident in his recusal decision because “it was so obviously a joke.”
“It just went along with the way the judge was with us at the trial and with Mr. McDonough,” Torgan said. “He was also joking around. It was just an extension of that. Everybody laughed at them. Even John laughed at them.”
Torgan noted that following the signs incident and Schack’s declaration of a mistrial, McDonough told Schack he would have no objection to the judge remaining on the bench for a retrial.
Torgan said Schack became “fond” of McDonough, often discussing sports, and Torgan described the “Wanted” posters as an “extension of the good-natured camaraderie between bench and the bar.”
It was on April 5 that Schack said McDonough stated for the record that the judge had been “overly nice, overly courteous [and] overly respectful to counsel and the jury.”
Kenneth Fisher, a Cozen lawyer who wrote the brief seeking Schack’s recusal, said that the law firm looks forward “to a timely and fair resolution of this litigation.”
McDonough did not respond to a call for comment.
Schack heard arguments on the recusal motion on Aug. 21. A second trial in Miller was scheduled to begin on Sept. 12, but Schack yesterday sent the matter back to the Jury Coordinating Part for assignment to another justice.
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