Because I am unable to agree with the majority that Supreme Court properly exercised its discretion in denying defendant’s motion for recusal, I respectfully dissent.
Ordinarily, the Judge presiding over a trial is the sole arbiter whether he should recuse himself in order to avoid the appearance of impropriety (see, People v Moreno, 70 NY2d 403, 406). In the trial of this case, however, the Judge also served as fact finder. Where the Judge also serves as fact finder, he may be obligated to disqualify himself in circumstances where, if he were presiding, the decision would be discretionary (see, e.g., 7 Selected Opns of Advisory Comm on Judicial Ethics 91-56 [1991]). This is one of those circumstances.
22 NYCRR 100.2 (b) provides that ”[n]o judge shall allow his or her family, social, or other relationships to influence his judicial conduct or judgment.” The Judge, on the second day of trial, informed the parties that he and plaintiff’s counsel were social acquaintances; that he and his wife see plaintiff’s counsel and counsel’s wife every two or three months. Although the Judge acknowledged that he did not feel uncomfortable, he noted that "it seems to me that that disclosure ought to be made on the record.” The Judge asked defendant’s counsel to talk with his client about that disclosure. After a brief discussion with his client, defendant’s counsel asked the Judge to recuse himself. The belated disclosure reflects the *960Judge’s concern that the relationship was significant enough to require disclosure and to elicit the consent of defendant to the Judge’s role as fact finder in the case. In my view, when defendant did not consent and affirmatively asked for recusal, the Judge should have disqualified himself in order to avoid the appearance of impropriety. Thus, I would reverse and grant a new trial before a different Judge. (Appeal from Judgment of Supreme Court, Erie County, Mintz, J.—Divorce.) Present—Balio, J. P., Lawton, Fallon, Wesley and Doerr, JJ.