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The New York State Commission on Judicial Conduct is apparently investigating a Buffalo judge who is accused of threatening to retaliate against Western New York’s largest newspaper because the publication refused to hold a story about the arrest of a prominent local attorney. A source close to the matter said the commission has made inquiries into a series of incidents that led New York Supreme Court Justice Nelson H. Cosgrove to recuse himself from an unrelated libel action against The Buffalo News. Cosgrove asked to be removed from the pending libel case after The News submitted an extraordinary set of motion papers and affidavits in which two editors said the judge attempted to use the power of his office to bully the press. Unclear, however, is whether Cosgrove will step aside from any future case involving The News, as the paper requested in its motion. The tension between The Buffalo News, a 224,000 circulation daily, and Cosgrove is rooted in an incident last month when the veteran judge was presiding over a medical malpractice trial that had nothing to do with the newspaper. On Nov. 12, The News was preparing a story about the arrest of attorney Carmen P. Tarantino, who was representing the defendant in the medical malpractice trial underway before Justice Cosgrove. Tarantino, of Brown & Tarantino in Buffalo, had been arrested Nov. 1 on the complaint of a former girlfriend and charged with burglary, grand larceny and criminal mischief for allegedly breaking into her bedroom. The News was planning to publish an article on Tarantino’s arrest in its Nov. 13 editions and contacted his attorney, Mark Mahoney, for comment, according to court papers. Later that day, Justice Cosgrove called The News and asked editors to hold the Tarantino story on the grounds that publication could compromise the malpractice trial, according to motion papers. When The News refused Cosgrove’s request, court papers allege, the judge threatened to retaliate if given the opportunity. In his motion for judicial disqualification or recusal, the newspaper’s attorney, Joseph M. Finnerty of Stenger & Finnerty in Buffalo, included affidavits from two editors who said they spoke with Cosgrove the afternoon of Nov. 12. Assistant City Editor Susan Schulman said in her affidavit that she fielded a call from the judge when the top editors were in a daily editorial meeting. Schulman said the judge told her he wanted the Tarantino story held and was prepared to haul The News into court if necessary to impose his will. “[J]ustice Cosgrove stated in words or substance: in his courtroom he gets what he wants; if The News won’t cooperate with him in this case on the phone, he can bring them into the courtroom and get what he wants,” Schulman said in the affidavit. Schulman said she referred the matter to Deputy Managing Editor Stan Evans when he emerged from the editorial meeting. Evans, in his sworn statement, said Cosgrove argued that publication of the Tarantino story while the malpractice trial was proceeding “might prompt a mistrial, which he said would be expensive and inconvenient for the parties and a hardship for the plaintiff’s family.” Evans, after conferring with News Editor Margaret M. Sullivan, said he called the judge back and advised him that the story would run the following day, as it did. “He described himself as ‘pissed off’ and stated that he would find a way or look for the opportunity to do something to ‘hurt’ The News,” Evans said in the affidavit. “He was very clear in stating that he wanted both me and Ms. Sullivan to know that, when the opportunity arose, he would do everything in his power to ‘hurt’ or to ‘get’ The News.” LIBEL CASE With Cosgrove presiding over Sidney Cottrell v. Berkshire Hathaway Inc., a pending $15 million libel action against The Buffalo News, the paper promptly filed a motion for judicial disqualification, arguing that the judge’s conduct “has destroyed the appearance of judicial impartiality,” and “forever deprived The News of confidence that its interests can or will be fairly and impartially considered and determined by this jurist.” Cosgrove recently asked 8th District Administrative Judge Sharon S. Townsend to reassign the libel case, and it has been transferred to Justice Peter J. Notaro. The plaintiff’s attorneys, David J. Seeger and Leigh E. Anderson, both of Buffalo, took no position, according to Finnerty. Finnerty on Thursday called the matter “an extremely regrettable incident on every conceivable level,” and an experience unprecedented in his 20 years of practicing law in Western New York. “I think the determination to transfer the Cottrell file to another jurist is an appropriate response to our motion,” Finnerty said. Finnerty said there are no other matters involving The Buffalo News currently pending before Justice Cosgrove. However, he said if a News case does again land on the judge’s docket the question of impartiality will likely re-emerge. “We will approach it on a case-by-case basis, but we will be informed by our prior experience,” Finnerty said. Sullivan, in an interview Thursday, said The News pursued the issue because “important principles [were] at stake” for both the newspaper and the community. “We find it disturbing that a judge would, first of all, attempt to exert influence on the timing of the publication of a news story,” Sullivan said. “Beyond that, for a judge to threaten any individual or any institution with retaliation is clearly improper.” Cosgrove, through his law clerk, Thomas P. Notaro, declined comment. Robert Tembeckjian, administrator of the Commission on Judicial Conduct, refused to discuss the matter.

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