A version of this story was originally published by New York Law Journal, an American Lawyer affiliate.
Claiming Brooklyn Supreme Court Justice Arthur Schack “openly demonstrated extreme bias and hostility” to John McDonough of Cozen O’Connor through “offensive ad hominem attacks” during litigation in a personal injury case, the firm has filed a motion for recusal.
Cozen, which is defending Duane Reade in a suit brought by a woman who had been hit by the company’s truck, claims the judge wrote “Wanted” over a headshot of McDonough and posted copies all over his courtroom on the last day of trial in the case in April. Schack declared a mistrial due to an issue with one of the jurors.
Two months later, Cozen says, when one of its attorneys was in court to have papers signed, Schack became angry, refused to sign, called McDonough a “piece of shit” and drew a red bull’s-eye around a copy of a web photo of McDonough.
“Justice Schack’s open hostility to Defendants’ trial counsel is manifest, and it necessitates that he recuse himself in order to assure that Defendants are treated fairly and impartially at retrial,” Cozens Kenneth Fisher wrote in a July 19 brief.
But according to the plaintiffs, represented at trial by Evan Torgan of Torgan Cooper & Aaron, the recusal bid is an “attempt to obtain another judge to try this case, because this Court issued pretrial rulings that were not to defendants’ liking.” (Read Torgan’s brief here.)
The plaintiffs produced an affidavit from an attorney not involved in the case who was in the courtroom at the time of the alleged exchange who said Schack never used such language. McDonough was treated “exceptionally well” throughout trial, and “was actually friendly” with Schack, the plaintiffs argued.
As for the “Wanted” image, the plaintiffs contend it “was just an extension of the good-natured camaraderie between bench and bar that was ever-present throughout the case.”
Schack declined to comment.
The judge heard arguments on the recusal motion on Aug. 21 and is expected to rule by Sept. 4. A second trial is scheduled to begin on Sept. 12.
The plaintiff, Shirly Miller, was left blind, brain-damaged and partially paralyzed after being hit by a Duane Reade truck three years ago.
Before trial, Schack issued several rulings that favored Miller. For example, he declined to bifurcate the trial and allowed the jury to consider liability and damages at the same time.
“Although Justice Schack made numerous rulings that were quite adverse to Defendants during the first trial, leading Defendants to believe that they were not being treated fairly, they had no actual evidence until the April 5th date,” said the recusal motion.
Cozen’s McDonough, in an affirmation, said he was “quite disturbed by the public display of these ‘wanted’ posters, particularly in finding them in a courtroom where I was trying a case, and I inquired as to their source. Justice Schack advised that the posters were his handiwork, and he proceeded to wave one about.”
McDonough continued that a court officer told him there were about 20 “Wanted” posters, with some taped outside the courtroom.
But Torgan said in court papers that the sign was a joke poking fun at McDonough for making multiple requests for a mistrial.
In June, Eric Berger, a Cozen attorney, appeared in Schack’s courtroom to have the judge sign oral rulings for purposes of an appeal. Torgan said he was not notified of the defendants’ request to sign the orders and was not present. Fisher maintained the firm’s actions were appropriate as the request was “essentially a ministerial function.”
But Schack allegedly became “incensed” at Berger’s request and said, “Bullshit. I’m not signing it,” loud enough so others in the courtroom could hear, Cozen claims.
“Tell that piece of shit McDonough he should not have made you do this,” Schack allegedly said, then handed the bull’s-eye to Berger.
According to the plaintiffs’ affidavit from David Mayer of Sacks & Sacks, who was present but not involved in the case, “at no time” did Schack utter the alleged phrase. The plaintiffs called the firm’s bias claim “utterly unpersuasive.”
“Such conduct would not be part of any truly destructive course a court would want to take toward a party that it intended to harm, since the obviousness of the conduct would certainly support a claim that the judge was disqualified from presiding over any facet of the case,” the plaintiffs’ claim.
In fact, Torgan claimed that Schack actually became “fond” of McDonough during the trial, for example, granting his request for a two-week adjournment and discussing sports.
Neither McDonough nor Fisher respond to a request for comment.
In an interview, Torgan called Schack “a very fair, impartial, intelligent judge who was incredibly nice to the Duane Reade lawyers and every witness who was present,” adding, “I don’t believe he would’ve said those things.”