Legal Question in Landlord & Tenant Law in New York

Ex Parte Communication

My Non Payment Eviction Case was sent to trial by a mediation judge. I

went to the trial room and waited @ 45 minutes. The court clerk checked

the computer and saw that the case had been sent down to trial; but the

folder was never sent down. The landlord and his attorney finally

appeared in the trial courtroom and said that the case was now back in

the mediation part. Back in mediation the judge granted an

adjournement, previously denied and set a new mediation date. It

appears that the landlord and his attorney continued to argue the case

after the case and I had been sent down to the trial room and convinced

the judge to adjourn. It appears there was ex parte communication with

the judge to get her to change her decision. Can I request a dismissal

because of ex parte communication? I go back JULY 29.


Asked on 7/22/03, 9:54 pm

1 Answer from Attorneys
Andrew Nitzberg Andrew Nitzberg & Associates

Re: Ex Parte Communication

Absolutely! Ex parte communication in law is like betting on baseball in baseball. Instant death.

You are correct: the mediator may not be the issue here. After all, the mediator may not impose an outcome or make a judgment. You may request that the judge "recuse" herself (they are all female judges in Housing Court). Recuse is the legal term for requesting that the judge hand the case to another judge. This is the procedural remedy available and it requires that you make a specific request.

I would say to the judge that the 'sending back to the mediator suggests that the mediator communicated to the judge about the case. That means there is a possible APPEARENCE that the judge MAY not make her decision based on the evidence presented in court but rather on impressions, feelings, and opinions derived from another source - the mediator'.

You don't have to be prudent or discrete in your language or attitude. Just emphasize the appearence that the judge may make a decision on evidence from a 3rd party and not only on the evidence presented by the parties in court.

The judge may exercise her own discretion in choosing whether or not to recuse herself. The parties cannot force her. Often they do recuse themselves. Good luck.

You are welcome to a consultation at no fee at my offices at 42 west 44th st., NY,NY. Please call for an appointment first. (646) 591-5786

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Answered on 7/22/03, 10:37 pm


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