The form takes less than a minute to complete. Two pages, a caption, a checklist, a signature line. It is the New York State Unified Court System’s standard instrument for one of the most consequential things a judge can do — remove himself from a case — and it is designed, in its bureaucratic way, to answer the one question that matters: why?
On August 3, 2026, at 11:39 in the morning, a Judiciary Law § 9 recusal form was filed with the Rockland County Clerk in US Bank Trust National Association v. Neustadt et al., a foreclosure action under Index No. 032320/2022. The recusing jurist: Hon. David Fried, Acting Justice of the Supreme Court. The Ethics Reporter has reviewed the filing, which appears on the docket as NYSCEF Document No. 135.
Of the fourteen substantive reasons the form offers a judge — a financial interest, a family relationship, a prior role in the case, the catch-all desire to avoid any appearance of impropriety — Justice Fried checked none of them. He checked only one box, near the top, in the section reserved for judges who decline to give a reason at all:
“pursuant to statute or caselaw, the reason for my recusal must be kept confidential.”
That is the entire explanation. No party in the case, no lawyer, no member of the public reading the docket will learn why the judge assigned to the matter walked away from it.
The Statute That Was Supposed to End This
Recusal in New York was, for most of the state’s history, a black box — and deliberately so. The controlling doctrine comes from the Court of Appeals’ 1987 decision in People v. Moreno: “Absent a legal disqualification under Judiciary Law § 14” — the narrow statute covering financial interest and family relation to a party — “a Trial Judge is the sole arbiter of recusal.” The decision to step aside, Moreno held, is discretionary, committed to “the personal conscience of the court.” For decades that phrase did double duty: it protected judges from being forced off cases by litigants’ motions, and it excused them from ever explaining the departures they chose for themselves. Judges stepped aside without a word, and litigants were left to guess whether the departure reflected a conflict, a grudge, a friendship, or nothing at all.
In December 2020, the Legislature decided the guessing had gone on long enough. It enacted a new Judiciary Law § 9 — a single sentence, and worth reading whole, because everything in this story turns on its structure:
“Any judge who recuses himself or herself from sitting in or taking any part in the decision of an action, claim, matter, motion or proceeding shall provide the reason for such recusal in writing or on the record; provided, however, that no judge shall be required to provide a reason for such recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.”
The command comes first: the judge shall provide the reason. The exception comes second, and it is drawn with a draftsman’s care. It covers reasons that “may result in embarrassment” or are “of a personal nature” — and not any embarrassment, but embarrassment “affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.” Sixth-degree consanguinity is the language of family trees: parents, children, siblings, first and second cousins, the web of blood and marriage that surrounds a jurist. The Legislature was not writing a general-purpose privacy shield. It was protecting a specific, sympathetic category — the judge whose recusal reason is a diagnosis, a divorce, a family member’s trouble — while leaving everything else subject to the statute’s central command.
The bill that became the law traveled through Albany in several drafts over successive sessions — one earlier version would have limited the carve-out to reasons of a “compelling personal nature” — before passing in 2020. The sponsors’ stated purpose, recited in the Senate’s own bill summary, was simple: to require judges who recuse themselves to provide the reason, with a narrow exception for embarrassment and personal matters. Silence was to become the exception. The default would be daylight.
The Box the Form Built
The Office of Court Administration translated the statute into a checklist, and the checklist is where the trouble lives. The standard form tracks § 9’s structure: a set of substantive reasons a judge may state, plus boxes for judges invoking the exceptions. A judge who checks box (b) — the box Justice Fried checked — is representing that some statute or caselaw affirmatively requires the reason to be kept confidential. The form does not ask which statute. It does not ask which case. It does not require the judge to explain, even in general terms, what category of confidentiality is being invoked. The box is, functionally, self-certifying.
There are real confidentiality mandates a judge might have in mind. The most commonly cited is Judiciary Law § 90(10), which seals attorney disciplinary complaints and investigations unless and until public discipline results. New York’s Advisory Committee on Judicial Ethics has wrestled openly with the collision between that secrecy and § 9’s disclosure command: in Opinion 21-45 and a line of related opinions, the Committee has acknowledged what it calls the apparent “dissonance” between the two statutes when a judge’s recusal reason is his knowledge of a confidential disciplinary matter involving a lawyer in the case — noting that whether § 9 requires disclosure in that circumstance “is a legal question we cannot resolve,” while observing that private disclosure to the affected attorney is ethically permissible. The Committee’s candor is admirable. It is also an admission: five years after the amendment, the state’s own ethics advisers cannot say with confidence when the confidentiality box may lawfully be checked. Into that uncertainty, a checkmark fits very comfortably.
A Familiar Signature
Readers of this publication will recognize the name on the signature line. In August, The Ethics Reporter reported on an earlier Judiciary Law § 9 form filed by Justice Fried in which he likewise declined to state his reason, checking the same confidentiality box — a filing that drew scrutiny because the recusal came in a case where a specific attorney, about whom the judge’s conduct had previously been the subject of complaints, appeared as counsel.
The relevant precedent has been on the books for nearly two decades. In 2007, the State Commission on Judicial Conduct decided Matter of Appel, admonishing a City Court judge who had barred a single attorney from appearing before her in future cases and refused to explain why. The Advisory Committee on Judicial Ethics, digesting Appel in Opinion 07-102, drew the lesson in plain terms: what the Commission disciplined was a judge “using recusal to punish or otherwise hurt or embarrass the attorney” and acting “in an irresponsible, undignified or demeaning manner.” The doctrinal point matters for the statute’s carve-out: personal animus toward counsel is not a confidential matter “affecting the judge.” It affects the lawyer, and the litigants, and the public. A judge cannot convert a grievance against an attorney into a family secret by checking a box that was drafted for diagnoses and divorces.
Whether the August 3 recusal in US Bank Trust belongs to that earlier pattern, or to some other explanation entirely, is precisely what the form is built to conceal. It must be said plainly: nothing in the public record establishes why Justice Fried recused himself from this foreclosure case, and the reason may be entirely proper — may, indeed, fall squarely within the statute’s legitimate carve-out, or within the genuine § 90(10) dilemma the Advisory Committee has described. A judge’s recusal is often an act of scruple, not an admission of anything. The Ethics Reporter twice wrote to Justice Fried, in July and again in August, requesting comment on his recent recusal filings. No response was received by publication time.
But that is the problem with the box. When a judge declines to give a reason, he does not merely withhold information; he transfers the burden of imagination to everyone else. The litigants in a foreclosure case — a bank, a borrower, whoever holds the equities — are entitled to wonder. So is the next judge assigned to the file. So is the public, which pays for the courthouse and is asked to trust what happens inside it.
What Other Systems Do
New York’s 2020 experiment is worth measuring against the alternatives, because the alternatives show that the problem is soluble. In the federal system, 28 U.S.C. § 455(a) commands that a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” — an objective standard, keyed to appearances, enforceable on appeal. Federal judges routinely issue short recusal orders identifying at least the category of conflict: a financial holding, a former client, a relative at a firm. The federal financial-disclosure regime, backstopped since 2022 by an online database of judges’ reports, lets litigants check for themselves. Nobody claims the federal system is perfect — the stock-conflict scandals reported by the Wall Street Journal in 2021, in which more than a hundred federal judges were found to have heard cases involving companies whose shares they or their families held, proved otherwise — but its architecture assumes that recusal reasons are, presumptively, public facts.
Constitutional law has moved the same direction. In Caperton v. A.T. Massey Coal Co. (2009), the Supreme Court held that due process itself required a West Virginia justice’s recusal from an appeal involving a $50 million verdict against a company whose chief executive had spent roughly $3 million supporting the justice’s election — a “probability of bias” too high for the Constitution to tolerate. Caperton’s premise is that recusal is not merely a matter of judicial etiquette; it is structural, a component of the fair tribunal the Constitution promises. A structural safeguard administered in secret is a contradiction in terms.
New York’s own rules gesture at the same insight. Section 100.3(F) of the Rules Governing Judicial Conduct permits a disqualified judge to remain on a case if he discloses on the record the basis of the disqualification and the parties, after consultation, agree to waive it. Remittal — the system’s official mechanism for keeping a conflicted judge — runs entirely on disclosure. The confidentiality box inverts the design: it removes the judge and the information at the same time, leaving the parties with neither the jurist nor the reason.
What Confidentiality Is For
There are genuinely confidential recusal reasons. A judge undergoing treatment for an illness that touches a case’s subject matter. A judge whose family member has an undisclosed connection to a party. A judge who has received a threat. The 2020 amendment’s carve-out exists because the Legislature understood that transparency, pushed to its limit, can punish judges for doing the right thing.
The carve-out, however, was drafted as a shield for the judge’s private life — not as a trapdoor beneath the statute’s central command. And the form’s design invites exactly that use. Because box (b) requires no citation and no elaboration, a judge who checks it cannot be meaningfully questioned. There is no procedure by which a litigant may test the claim of confidentiality, no registry that tracks how often individual judges invoke it, no requirement that the invocation be reviewed by an administrative judge or anyone else. The Office of Court Administration publishes the form; it does not audit the checkmarks. Nor does any public dataset exist from which a researcher could count how often the confidentiality box is checked statewide, by whom, in what kinds of cases. The statute created a disclosure obligation; nobody built the infrastructure to notice when it is not being met.
Compare the treatment of lawyers, who face discipline for far smaller opacities. An attorney who withholds material information from a court risks a grievance; a judge who withholds the reason for abandoning a case risks, as far as the public record shows, nothing.
What the Parties Are Owed
It is worth pausing on who actually absorbs the cost of an unexplained recusal, because it is never the judge. In a foreclosure action, delay is not neutral. The US Bank Trust case has been on the docket since 2022; interest accrues, arrears compound, a homeowner’s window for reinstatement or modification narrows while the file waits for reassignment, and a lender’s carrying costs mount. Whichever side the equities favor, both sides just lost the judge who knew the file, and neither is entitled to know why. If the reason touches one of the parties — a relationship, an interest, a history — then the reassignment is not merely administrative; it is information the parties could have used, perhaps for years of the litigation already behind them. If a judge harbored a disqualifying connection to this case, when did it arise? Was it present at earlier rulings? A stated reason answers those questions. A checked box preserves them forever.
There is also the quieter cost to the judiciary itself. Judges who recuse for honorable, genuinely private reasons are indistinguishable, on the form, from judges avoiding scrutiny — the confidentiality box launders both alike. A transparency regime that cannot separate scruple from evasion protects neither, and it invites the public to assume the worst, which is precisely the corrosion the 2020 amendment was written to arrest.
Closing the Gap
None of this requires a legislative revolution to fix; it requires plumbing. Three modest repairs suggest themselves, each within the existing statute’s spirit. First, the form could require a citation: a judge invoking box (b) would name the statute or decision said to mandate confidentiality, even if nothing more. A judge relying on Judiciary Law § 90(10) could say so in four characters; the citation would confirm the invocation has a legal basis without revealing the substance. Second, the invocation could be routed to the district’s administrative judge for in-camera review — not to second-guess the recusal, which remains the judge’s conscience under Moreno, but to verify that the claimed confidentiality actually exists. Third, the court system could simply count: an annual tally of § 9 filings by category, judge names omitted if need be, so that the public could at least see whether the exception is swallowing the rule. The Legislature has, in recent sessions, reintroduced bills refining § 9’s text; the machinery of oversight remains unbuilt.
The Ledger Grows
Each individual recusal is a small event. A case is reassigned; the wheels turn; the parties adjust. What accumulates is something harder to measure: a ledger of unexplained departures, kept in public dockets but legible to no one, in which the same judicial signature appears above the same unexplained box.
The Legislature in 2020 made a judgment that the reasons for recusal belong, presumptively, to the public. Six years later, in Rockland County, the presumption is being tested one checkmark at a time. The statute says a judge “shall provide the reason.” The form says he may decline. Between those two sentences sits a gap wide enough to drive a docket through — and until someone in Albany or the court system’s administrative hierarchy closes it, the answer to the only question the form was designed to ask will remain what it was on August 3: a box, checked, saying nothing.