In a very surprising announcement, somewhat buried in the late afternoon on the day before election day 2020, Associate Judge Leslie Stein announced that she would be retiring from the Court of Appeals bench effective June 4, 2021. Judge Stein, who joined the Court on February 9, 2015, wasn’t slated to reach New York’s mandatory retirement age of 70 until 2026. Her retirement 5 years early opens 2 seats on the Court’s bench in 2021, with Associate Judge Eugene Fahey also leaving the bench at the end of the year, forced into mandatory retirement on December 31, 2021.

There will be a lot of time between now and June 4, 2021 to reflect on Judge Stein’s legacy on the Court (and I surely plan to), but for now the fun begins with speculation about who is likely to take Judge Stein’s seat following her retirement. The likely list is long, so let’s take a look at some of the top candidates. Let me be clear, this is pure speculation. I have absolutely no knowledge about who Governor Cuomo is likely to pick or even what characteristics he will look for in a new Court of Appeals judge. But let’s guess anyway just for fun.

First, a refresher on the appointment process. As provided under Judiciary Law s 68 (2), when a vacancy on the Court of Appeals occurs other than because of the expiration of the retiring Judge’s term, the Clerk of the Court must immediately notify the Commission on Judicial Nomination, which then has 120 days to solicit applicants, investigate their qualifications, and recommend a list of up to 7 people for the Governor’s consideration. Once the Governor receives the list, he must appoint someone from the list to Court no sooner than 15 days and no longer 30 days after that, subject of course to New York State Senate confirmation. Once confirmed, the judge can then join the bench as soon as later that afternoon.

The Repeat Nomination Candidates

What’s remarkable about appointments to the Court of Appeals is that judges often have to make the nomination list a number of times before they are actually selected by the Governor. For example, Associate Judge Howard Levine was appointed to the Court in 1993 in his seventh appearance on the nomination list. More recently, it took Judge Rowan Wilson six times on the list before the Governor selected him to replace retiring Associate Judge Eugene Pigott. Judge Michael Garcia, on the other hand, made it on the Court in only his second time on the list.

Looking at the prior nomination lists is a good place to start when trying to predict who might be nominated to replace Judge Stein.

1. Hon. Erin Peradotto, Associate Justice, Appellate Division, Fourth Department

Justice Peradotto has been named on the Commission of Judicial Nomination’s list to be nominated to the Court of Appeals three times in the past, in 2014, 2015, and most recently in 2016 when Judge Wilson was selected to replace Judge Shelia Abdus-Salaam. Justice Peradotto has served on the Appellate Division, Fourth Department since 2006, and is widely recognized for her work and service to the bench and bar. Most recently, Justice Peradotto was selected for the Erie County Bar Association’s Outstanding Jurist Award, and serves on the Chief Judge’s Working Group on the Future of the Bar Exam, among many other committees.

2. Caitlin Halligan, former Solicitor General of the State of New York

Ms. Halligan has also previously appeared on the nomination list three times. She served as New York’s Solicitor General from 2001 to 2007, and then, after a brief return to private practice, as General Counsel for the New York County District Attorney’s Office. She was also once nominated by President Barack Obama to fill a vacancy on the U.S. Court of Appeals for the District of Columbia Circuit, but she never received a confirmation vote in the U.S. Senate and she ultimate requested that her nomination be withdrawn. Ms. Halligan is now back in private practice, leading the appellate group at Selendy and Gay in Manhattan, and she is also currently serving on the Chief Judge’s Working Group on the Future of the Bar Exam.

The Other Possible Contenders

Governor Cuomo has shown that he has often likes to make “first in history” court appointments. In 2017, he nominated Judge Paul Feinman, who is the Court’s first openly gay Judge. Before Judge Feinman, Governor Cuomo nominated Judge Shelia Abdus-Salaam, the Court’s first African American woman to serve on the bench. This opportunity to further increase the Court’s diversity will not be lost on the Governor. Indeed, as one commentator noted on Twitter last night, the Court has not yet had an Asian American Judge:

And there is a very good candidate currently serving on the First Department.

3. Hon. Jeffrey Oing, Associate Justice, Appellate Division, First Department

Justice Oing has served on the First Department since 2017, was the first Asian American judge appointed to New York County’s Commercial Division, and served on the trial bench for 14 years before his elevation to the Appellate Division. Justice Oing also served as Deputy General Counsel for New York City, handing matters involving the City Council, and has been roundly recognized as an excellent jurist.

We will learn a lot about the upcoming nomination in the next few months, but I for one wouldn’t be surprised to see one of these three to be the pick.

Even before the coronavirus pandemic hit New York, the state had a huge budget deficit to overcome. With the pandemic decreasing state revenues even further, Governor Andrew Cuomo recently announced a planned $300 million reduction to the New York court system’s budget. That’s a very large cut, and the courts did not have a choice but to take some drastic cost cutting measures in response.

Unfortunately, one of the measures that Chief Administrative Judge Lawrence Marks and the courts chose to make up for the 10% budget reduction was to deny 46 judges recertification to the bench after they reached the state’s mandatory retirement age of 70.

Under Judiciary Law 114 and 115, judges of the Court of Appeals and Supreme Court (including both the Appellate Division and the trial bench) may apply to be recertified to the Supreme Court bench after they retire for up to 3 terms of 2 years each. So, a judge who reaches the age of 70 may continue to serve either on the Appellate Division or the trial bench after their mandatory retirement until they reach the age of 76, if the court system finds that they “has the mental and physical capacity to perform the duties of such office and (b) that [their] services are necessary to expedite the business of the supreme court” (Judiciary Law 114 [1]; id. 115 [1]).

Recertification of retired judges is fairly routine. For example, once Court of Appeals Associate Judge Eugene Pigott reached mandatory retirement age and was forced off the Court of Appeals bench, he applied for and was granted recertification as a trial court judge in Erie County. Although routine, recertification is not guaranteed, however. The decision lies in the discretion of the Administrative Board of the Courts.

To make up part of the $300 million budget cut that Governor Cuomo has forced on the court system, Judge Marks announced that 46 judges would not be certified to the bench for terms beginning January 1, 2021, including 7 Justices of the Appellate Division. The First Department will be losing 2 Justices (David Friedman and Ellen Gesmer). The Second Department will lose 4 (Jeffrey Cohen, John Leventhal, Joseph Maltese, and Sheri Roman). And Justice Eugene Devine will leave the Third Department.

Only 3 judges were granted recertification notwithstanding the budget cuts: (1) Appellate Division, First Department Administrative Judge Angela Mazzarelli, who serves on “a number of task forces and commissions such as the State Commission on Judicial Conduct,” according to the court system spokesperson; (2) Appellate Term, First Department Justice Carol Edmead; and (3) Appellate Term, Second Department Administrative Judge Jerry Garguilo.

The budget cuts will certainly take a toll on the court system, but especially the Appellate Division, Second Department, which is already trying to reduce its large backlog of pending undecided appeals, and now loses 4 Justices from the court. Although this was likely unavoidable due to the unprecedented circumstances that the state and court system now face, it’s still troubling if it only further delays the resolution of pending appeals. For as they say, “justice delayed is justice denied.”

After the Third Department declared that DFS violates the New York Constitution’s ban on gambling, the thought was that the industry’s only savior would be the seven Judges of the New York Court of Appeals. But now there may be another way.

Yesterday, Senator Joseph Addabo introduced a new bill that could provide a way around the Third Department’s holding that DFS is prohibited gambling and effectively moot the case before the Court of Appeals. A quick refresher: The New York Constitution bans “gambling,” but doesn’t define the term. The Third Department held that the Penal Law definition of what is prohibited gambling governs the extent of the constitutional ban. That is, the Constitution prohibits any games the outcome of which depend upon chance in a material degree, notwithstanding that they may also involve the players’ skill.

Here’s the way around. In addition to providing a new severability clause for the Interactive Fantasy Sports Law, the new proposed legislation would redefine the scope of gambling under the New York Penal Law to exclude daily fantasy sports.

By amending the Penal Law definition of gambling, the new proposed legislation would play right into the Third Department’s holding. If the scope of “gambling” under the Constitution is governed by the Penal Law, as the Third Department held, changing the Penal Law, as the Legislature has the power to do, would fix the constitutional problem (assuming you think there is one—I don’t).

Thus, if the bill is passed and signed into law before the Court of Appeals decides the appeal, it would effectively moot the constitutional challenge because the Court would have to apply the law as it stood at the time of its decision. Now, the Court would still have to agree with the Third Department’s determination that the scope of “gambling” under the Constitution is the same as the Penal Law definition, but that seems likely, given that the Penal Law definition was adopted in the first instance to implement the constitutional ban after it was adopted.

This is a very interesting development, and could have a huge impact on the appeal before the Court of Appeals. It’s definitely something to watch.

Following the First and Second Department’s forays into virtual Skype arguments, the Court of Appeals announced yesterday that it would be hearing arguments virtually during its June session.

Although some attorneys whose appeals had been scheduled for the March or April/May session won’t get the chance to argue, because the Court will be taking a few previously calendared cases on submission (including an interesting—to me, at least—issue about whether a municipal defendant can exclude one of multiple claimants from a statutorily required pre-suit deposition), most cases from those sessions will be rescheduled for argument later. And the Court has chosen a limited number of cases for the first virtual argument session in the Court’s history in June. The arguments will be livestreamed, as always, so we’ll all get to see what the Judges’ homes or chambers look like (unless of course they’ve figured out how to work virtual backgrounds).

The Third and Fourth Department Expand Virtual Court Operations Too

Not to be left out, the Third and Fourth Department are also following the First and Second Departments’ lead into virtual arguments.  Last Friday, the Fourth Department announced that it was not only going to be scheduling special virtual argument sessions for May and June and holding Skype arguments, but that it was also rescinding its prior order that had suspended appeal perfection and briefing deadlines.  In its place, the Fourth Department set a new schedule for the appeals:

The Third Department too is scheduling special virtual argument sessions for May and June. But, unlike the Fourth Department, the Third Department is continuing its suspension of perfection and briefing deadlines, at least for now.  That may change as we finish up the virtual argument sessions, and the Court sees how well they can work.

Now the Court of Appeals and all four departments of the Appellate Division are hearing arguments virtually, and the work of our appellate courts can continue, even in these times where we’re all working from home.

Although most New York courts remain limited to hearing designated essential matters, or deciding their already fully submitted motions, the Appellate Division, First and Second Departments are expanding virtual operations for all of their appeals. For appellate lawyers like me, that’s very good news.

Earlier today (April 15th), the First Department released an update advising the bar that it has created two new special argument terms during which appeals will either be submitted on the papers or argued via Skype: (1) the May Special Term, beginning May 4th and ending May 29th, and (2) the June Special Term, beginning June 1st and ending June 26th.

Most notably, the First Department announces that it will allow parties to agree to perfect appeals and e-file motions in non-essential matters, even while the deadlines to do so remain suspended. That means that you can file that long looked-over brief that was ready to be filed a few weeks ago, if the other side agrees.  But again, opposing counsel will have no obligation to respond because the deadlines are still suspended until the Court orders otherwise.

In the Second Department, the Court will continue hearing appellate arguments via Skype, if the parties request to be heard. The first round of virtual arguments in late March and early April went off without a hitch, the Court says, and so the next round of arguments are being scheduled for April 27th through May 8th.

Although the Third and Fourth Departments remain on the virtual sidelines for now, here’s hoping they’ll embrace the example set by their downstate brethren soon, so we can all get back to arguing, from a safe virtual distance of course!

Unprecedented times call for unprecedented measures. And we’re certainly in unprecedented times.  With the spread of COVID-19 growing exponentially each day, Chief Judge Janet DiFiore, Chief Administrative Judge Lawrence Marks, and the entire courts system have decided to take unprecedented action to limit in-court proceedings to only those essential for the administration of justice.  All non-essential proceedings are suspended until further order, and that now includes the filing of all litigation papers, under an order issued by Chief Administrative Judge Marks on March 22nd. While lawyers may keep working on their litigation matters, the courts will not be accepting any filings, except for those in enumerated essential proceedings.

Here’s a quick summary of the measures that the New York courts have adopted to try to do its part to keep its employees and the litigants that normally appear before it each day safe (UPDATED as of March 23, 2020):

The Appellate Division

For the first time that I can recall, the Appellate Division has suspended oral arguments. Each Department is handling it differently. In the First Department, the Court has cancelled all arguments scheduled for March 17, 18, and 19 and is taking those cases on submission. Beginning with the April term, and until the Court orders otherwise, all appeals will be submitted on the briefs or by oral argument through Skype. The Second Department is also taking its appeals on submission, unless the parties request to argue via Skype.

In the Third Department, the Court has strongly encouraged all attorneys who are scheduled to argue during the March term, which runs from March 23rd to 27th, to submit their appeals on the briefs. If argument is required, the Court is rescheduling the arguments for a later date. And in the Fourth Department, the Court has decided to take all arguments scheduled for the March/April term on submission only, without oral argument. Arguments for the May 2020 term will be rescheduled.

All of the Appellate Division Departments have now also issued orders suspending all non-statutory perfection and filing deadlines for the foreseeable future. In the First Department, for example, all deadlines are suspended, except for those cases that have been perfected for the May or June 2020 terms. All other Departments have suspended all deadlines for all cases (the Second Department, Third Department, and Fourth Department orders are here).

To be clear, and to avoid a trap for the unwary, the Appellate Division’s orders did not suspend the statutory deadlines for filing a notice of appeal or a motion for leave to appeal. Those deadlines were not been extended, in the first instance. But Governor Cuomo later issued an executive order tolling all statutory deadlines until April 19th, which includes the service of notices of appeal or motions for leave to appeal. The executive order provides:

In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis,   any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.

That fills the gap that had been left by the Appellate Division’s deadline suspension order, and ensures that all deadlines have now been suspended for the duration of this order. Although this executive order only tolls deadlines until April 19th, I would fully expect the Governor to extend this order further if the State’s COVID-19 response is still in full effect as we approach that date.

The Court of Appeals

The Court of Appeals at first decided to proceed with the oral arguments scheduled for its March session, which has argument dates on March 17th, 18th, 24th, and 25th. The Court advised counsel, however, that if they are unable to make it due to the public health crisis, the Court was willing to accommodate argument by videoconference.

As the Court began its first arguments in the March session, it was a remarkable sight to see the Judges observing social distancing by moving Chief Judge DiFiore, Judge Rivera, and Judge Stein from their normal positions on the bench to the advocates’ tables in front of the bench, while the remaining Judges spread out along the bench behind them. As they say, a picture is worth a thousand words:

And behind the advocates was an eerily empty courtroom that echoed with each argument.

After holding arguments for the first day of session, the Court of Appeals has now decided to suspend the remainder of its argument calendar for March 18th, 24th, and 25th, and will reschedule those appeals for a later date. The Court will also no longer accept any filings, including stay applications, in person at the Clerk’s Office.

The Trial Courts

In the New York trial courts, only pending criminal or civil trials may continue. Any trials that have not yet begun will be adjourned pending further order. Further, as of March 16th, all evictions and eviction proceedings are suspended until further notice. All other matters are limited to those that the courts have deemed essential.  No other court appearances will be held to try to ensure the safety of court staff and the parties.

These are certainly trying and uncertain times. The New York courts are trying to do their part to ensure that essential judicial services can still be provided, while ensuring the safety of court employees and the public alike. For updated information about court closures or other steps the courts have taken, the New York State Bar Association has put together a site that is being updated daily with new information, which can be found here. Stay safe everyone.