and The O'Brien Corporation (collectively, the "manufacturer defendants") have moved for recusal pursuant to 28 U.S.C. § 455 ("Section 455"), based on their intent to raise, as a defense to cross-claims brought by defendant the City of New York ("the City"), the City's policy regarding lead paint poisoning between 1967 and 1969, at which time I served as Deputy Mayor of the City. For the reasons set forth below, the motion is granted with regret.
The parties, facts and prior proceedings are fully described in earlier opinions of this Court, familiarity with which is assumed. See German v. Federal Home Loan Mortgage Corp., 1994 U.S. Dist. LEXIS 8716, 1994 WL 319154 (S.D.N.Y. June 28, 1994) (German I); German v. Federal Home Loan Mortgage Corp., 885 F. Supp. 537 (S.D.N.Y. 1995) (German II); German v. Federal Home Loan Mortgage Corp., 896 F. Supp. 1385 (S.D.N.Y. 1995) (German III); German v. Federal Home Loan Mortgage Corp., 899 F. Supp. 1155 (S.D.N.Y. 1995) (German IV); German v. Federal Home Loan Mortgage Corp., 899 F. Supp. 1155 (S.D.N.Y. June 25, 1996) (German V). A review of those parties, facts and prior proceedings relevant to this motion is presented below.
On July 26, 1993, Ana Maritza German, on behalf of her children Wellington and Jennifer German, instituted this action in Supreme Court, Bronx County, against Freddie Mac and several other entities involved in the management of the building in which the Germans reside. The complaint sought damages for personal injuries to the infant Germans resulting from lead paint exposure, and sought relief for Ana German in her individual capacity as mother and natural guardian of the infant plaintiffs.
Pursuant to 28 U.S.C. § 1446(b), Freddie Mac, as an entity created by federal legislation, removed the action to this Court on October 5, 1993.
On August 22, 1994, the Goffins, a mother and her two minor children living in Freddie Mac owned housing, filed an intervenor complaint seeking individual and class relief. Pursuant to this Court's opinion, dated June 28, 1994, granting plaintiffs' motion to amend the Complaint, the City of New York (the "City") was added as a defendant in this action based on its prior ownership of the building in which the Germans reside. See German I.
A second amended complaint was filed on September 16, 1994, in which the plaintiffs sought class certification and an order requiring defendants to take steps necessary to protect from lead poisoning young children living in buildings owned or managed by defendants, or in buildings to which defendants administered federal funds.
On September 29, 1994, the Germans and the Goffins filed a motion seeking class certification. Motions to dismiss and for partial summary judgment were also filed by all the defendants in September 1994. On May 8, 1995, the Court filed an opinion granting in modified form plaintiffs' motion for class certification. The Court certified the class of children under seven residing in buildings owned, managed or operated by defendants, or where they administer federal funds. German II, at 561. The class was certified as against the City as a public housing administrator of funds with respect to the Germans' claims, and as against Freddie Mac as an owner and the New York City Housing Authority ("NYCHA") as an administrator of funds with respect to the Goffins' claims. Id. The Opinion filed May 8 also granted defendants' motions to dismiss plaintiffs' state claims based on theories of negligence per se, strict product liability, and liability for ultrahazardous substances. Defendants' motions to dismiss the remaining state causes of action were denied.
By Opinion dated August 22, 1995, the Court granted a motion to intervene filed by the David family and denied motions by the City and Freddie Mac to reargue the class certification motion. German III, at 1391-92. On September 15, 1995 the Court granted a motion to intervene by the Franklin family. German IV. By Opinion date June 26, 1996, the Court granted plaintiffs' motion to add class representatives, granted in part plaintiffs' motion to amend the class definition, and denied, with leave to renew, plaintiffs' motion to require notice to the class. German V. Pursuant to German V, the class was expanded to include children under seven and pregnant women residing in City-owned housing.
Pursuant to this Court's order of December 8, 1995, Kaii Henry and her children Naiya Thomas and Naquan Thomas (the "Henry plaintiffs") filed an intervenor complaint in this action on January 12, 1996 ("the Henry complaint"). The Henry complaint includes claims against the manufacturer defendants -- manufacturers of lead pigment used in lead paint -- for products liability, negligence and fraud. The Henry plaintiffs seek certification of a class of all children under seven and all pregnant women residing in the City who live in housing "containing or presumed to contain lead-based paint or lead-based paint hazards." The Henry plaintiffs seek to establish Court-administered medical monitoring and abatement funds, to which all defendants, including the manufacturer defendants, would contribute.
The City and NYCHA are also named as defendants in the Henry plaintiffs' intervenor complaint, and have asserted cross-claims for indemnity and contribution against the manufacturer defendants, which mirror the City's and NYCHA's claims as plaintiffs against the manufacturer defendants in City of New York v. Lead Industries Assn., et al., Index No. 14365/89, pending in New York County Supreme Court (the "State Court Action").
Currently sub judice before this Court are motions to dismiss filed by certain manufacturer defendants, a motion for summary judgment filed by the O'Brien Corporation and American Cyanamid, a motion to dismiss the City's and NYCHA's cross-claims filed by the manufacturer defendants, and motions to compel discovery filed by the manufacturer defendants and the City. Upon the filing of the instant motion to recuse, the Court granted, over plaintiffs' objections, the manufacturer defendants' request to adjourn all pending motions until resolution of the instant motion.
The Background of the Motion to Recuse
I served as Deputy Mayor of the City in the administration of Mayor John V. Lindsay from 1967 to 1969. By the late 1960's, the City was aware of the alleged hazards of peeling or flaking lead paint to children. In 1954, the City had enacted a regulation requiring warning labels on lead paint containers. Sanitary Code § 230d. In 1959, the City had banned the use of lead paint on the interiors of dwellings because of the perceived hazards to children, and gave the Health Department legal authority to order abatement of lead paint. Health Code § 173.13(c), (d)(1).
During my service as Deputy Mayor, the childhood lead poisoning issue received attention at the highest levels of the Lindsay administration. In August 1996, the manufacturer defendants took the deposition of Werner H. Kramarsky ("Kramarsky"), who was Assistant and then Special Assistant to Mayor Lindsay from 1966 to 1969 with responsibility for health matters. (Tr. 12:2-6, 17:9-17). Kramarsky recalled that he "worked very closely" with me when I was Deputy Mayor. (Tr. 20:2-6). He testified that he discussed lead poisoning issues with Mayor Lindsay, myself, and other assistants to Mayor Lindsay. (Tr. 22-23, 48:21-50:17, 90-93, 105-106, 118-125). Kramarsky specifically recalled that he asked me to use my authority as Deputy Mayor to have the Budget Bureau transfer $ 150,000 to begin a lead poisoning "research project" in the Health Department. (Tr. 51:9-54:13, 55:1-56:16). (Tr. 124:24-125:21).
By letter dated February 24, 1967, Health Commissioner O'Rourke wrote to me regarding the need to incorporate into the "Grad Code" for housing the City Health Code provisions pertaining to lead paint, stating:
We note that Article 12 dealing with the painting of residential space makes no reference to prohibition against the use of lead paint and further that where deemed necessary that previously applied lead paint be removed. This is particularly important in the instances where pica children who have had a history of plumbism not be exposed again to the effects of lead paint on the walls of their living quarters. Section 173.13 of the Health Code makes provision for this control. There should be some indication of this either by adopting the Health Code provision or referring to it.
On January 15, 1970, section 173.13 of the New York City Health Code was enacted. This was the first City legislation to impose an obligation on the City Health Department to order property owners to abate, and to require the Department of Health ("DOH") to request New York City's Department of Housing Preservation and Development to abate.
On October 2, 1996, the manufacturer defendants filed the instant motion to recuse, asserting that they intend to interpose, as a defense against the City's cross-claims, the defense that the City's own negligence in discharging its duties during the 1950's, 1960's and 1970's contributed to the lead paint hazards and injuries now alleged by plaintiffs. The manufacturer defendants contend that such a defense will implicate the City's liability for action and inaction during the period when the I served as Deputy Mayor in the Lindsay administration, and that as a consequence recusal is required pursuant to § 455.
Plaintiffs oppose the motion to recuse. The City takes no position with respect to the motion but submitted a memorandum of law asserting that the manufacturer defendants' intended defense to the City's cross-claims -- i.e., that the City's conduct regarding lead paint hazards was a cause of the injuries now claimed by plaintiffs -- is utterly devoid of merit. Oral argument was heard on October 2, 1996, at which time the recusal motion was considered fully submitted.
I. The Legal Standard for Recusal
28 U.S.C. §§ 455(a) and (b)(1), provide:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.