N.Y. Comp. Codes R. & Regs. Tit. 22 § 36.2 - Appointments
(a) Appointments by
the judge. All appointments of the persons set forth in section
36.1 of this Part, including those
persons set forth in section
36.1(a)(10) of
this Part who perform services for guardians or receivers, shall be made by the
judge authorized by law to make the appointment. In making appointments of
persons to perform services for guardians or receivers, the appointing judge
may consider the recommendation of the guardian or receiver.
(b) Use of lists.
(1) All appointments pursuant to this Part
shall be made by the appointing judge from the appropriate list of applicants
established by the Chief Administrator of the Courts pursuant to section
36.3 of this Part.
(2) An appointing judge may appoint a person
not on the appropriate list of applicants upon a finding of good cause, which
shall be set forth in writing and shall be filed with the fiduciary clerk at
the time of the making of the appointment. The appointing judge shall send a
copy of such writing to the Chief Administrator. A judge may not appoint a
person that has been removed from a list pursuant to section
36.3(e) of this
Part.
(3) Appointments made from
outside the lists shall remain subject to all of the requirements and
limitations set forth in this Part, except that the appointing judge may waive
any education and training requirements where completion of these requirements
would be impractical.
(c)
Disqualifications from appointment.
(1) No
person shall be appointed who is a judge or housing judge of the Unified Court
System of the State of New York, or who is a relative of, or related by
marriage to, a judge or housing judge of the Unified Court System within the
fourth degree of relationship.
(2)
No person serving as a judicial hearing officer pursuant to Part 122 of the
Rules of the Chief Administrator shall be appointed in actions or proceedings
in a court in a county where he or she serves on a judicial hearing officer
panel for such court.
(3) No person
shall be appointed who is a full-time or part-time employee of the Unified
Court System. No person who is the spouse, sibling, parent or child of an
employee who holds a position at salary grade JG24 or above, or its equivalent,
shall be appointed by a court within the judicial district where the employee
is employed or, with respect to an employee with statewide responsibilities, by
any court in the State.
(4)
(i) No person who is a chair or executive
director, or their equivalent, of a State or county political party (including
any person or persons who, in counties of any size or population, possess or
perform any of the titles, powers or duties set forth in Public Officers Law
section 73), or the spouse, sibling, parent or child of that official, shall be
appointed while that official serves in that position and for a period of two
years after that official no longer holds that position. This prohibition shall
apply to the members, associates, counsel and employees of any law firms or
entities while the official is associated with that firm or entity.
(ii) No person who has served as a campaign
chair, coordinator, manager, treasurer or finance chair for a candidate for
judicial office, or the spouse, sibling, parent or child of that person, or
anyone associated with the law firm of that person, shall be appointed by the
judge for whom that service was performed for a period of two years following
the judicial election. If the candidate is a sitting judge, the
disqualifications shall apply as well from the time the person assumes any of
the above roles during the campaign for judicial office.
(5) No former judge or housing judge of the
Unified Court System, or the spouse, sibling, parent or child of such judge,
shall be appointed, within two years from the date the judge left judicial
office, by a court within the jurisdiction where the judge served. Jurisdiction
is defined as follows:
(i) the jurisdiction
of a judge of the Court of Appeals shall be statewide;
(ii) the jurisdiction of a justice of an
Appellate Division shall be the judicial department within which the justice
served;
(iii) the jurisdiction of a
justice of the Supreme Court and a judge of the Court of Claims shall be the
principal judicial district within which the justice or judge served;
and
(iv) with respect to all other
judges, the jurisdiction shall be the principal county within which the judge
served.
(6) No attorney
who has been disbarred or suspended from the practice of law shall be appointed
during the period of disbarment or suspension.
(7) No person convicted of a felony, or for
five years following the date of sentencing after conviction of a misdemeanor
(unless otherwise waived by the Chief Administrator upon application), shall be
appointed unless that person receives a certificate of relief from
disabilities.
(8) No receiver or
guardian shall be appointed as his or her own counsel, and no person associated
with a law firm of that receiver or guardian shall be appointed as counsel to
that receiver or guardian, unless there is a compelling reason to do
so.
(9) No attorney for an alleged
incapacitated person shall be appointed as guardian to that person, or as
counsel to the guardian of that person.
(10) No person serving as a court evaluator
shall be appointed as guardian for the incapacitated person except under
extenuating circumstances that are set forth in writing and filed with the
fiduciary clerk at the time of the appointment.
(d) Limitations on appointments based upon
compensation.
(1) No person shall be eligible
to receive more than one appointment within a calendar year for which the
compensation anticipated to be awarded to the appointee in any calendar year
exceeds the sum of $15,000.
(2) If
a person has been awarded more than an aggregate of $100,000 in compensation by
all courts during any calendar year, the person shall not be eligible for
compensated appointments by any court during the next calendar year.
(3) For purposes of this Part, the term
compensation shall mean awards by a court of fees, commissions, allowances or
other compensation, excluding costs and disbursements.
(4) These limitations shall not apply where
the appointment is necessary to maintain continuity of representation of or
service to the same person or entity in further or subsequent
proceedings.
Notes
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