In a surprising announcement Tuesday, Governor Andrew Cuomo made two picks to fill the open seats on the New York Court of Appeals. It wasn’t surprising that the Governor made the two picks together (I called that one when the Commission on Judicial Nomination released the list of candidates to replace the late Judge Paul Feinman). It was surprising who he selected for the Court: Madeline Singas, the Nassau County District Attorney, will replace Associate Judge Leslie Stein and Hon. Anthony Cannataro, the Citywide Administrative Judge for the Civil Courts of the City of New York, will replace Judge Feinman.

From the list of candidates sent to the Governor for Judge Stein’s vacancy, which included Caitlin Halligan, Hon. Erin Peradotto of the Fourth Department, and Kathy Chin, all of whom had previously been selected for the Court of Appeals candidate list multiple times, Governor Cuomo chose District Attorney Singas, a close political ally who he appointed as the special prosecutor to investigate the allegations that then-Attorney General Eric Schneiderman had assaulted four women with whom he was romantically involved because of her reputation for pursuing crimes against women. She is a career prosecutor, joining Chief Judge DiFiore as another sitting District Attorney to join the Court of Appeals bench.

Judge Cannataro is the Citywide Administrative Judge of the Civil Court of the City of New York and is Co-Chair of the Richard C. Failla LGBT Commission of the New York State Courts. As an openly gay jurist with a decade of judicial experience, Judge Cannataro was one of two openly gay candidates on the list to replace the late Judge Feinman. Judge Cannataro clerked at the Court of Appeals for Associate Judge Carmen Beauchamp Ciparick to begin his legal career, and he has credited that experience for why he wanted to become a judge. Now, the Governor has picked him to sit on the same bench as his former boss, back at 20 Eagle Street.

My prediction credibility took a pretty severe hit with these choices by the Governor. I ranked District Attorney Singas last on the list of seven women candidates for Judge Stein’s seat (though I wasn’t the only one), and Judge Cannataro fourth, but at least called him the dark horse if the Governor did not go with Michael Bosworth to replace Judge Feinman.

What Does This Mean for the Court of Appeals?

The picks leave the Court of Appeals devoid of Judges with any Appellate Division experience. Both Judges Stein and Feinman came from the Appellate Division, but their replacements have no judicial experience in New York’s appellate courts. So, when the Court returns after its summer recess for the September session in the fall, Judge Fahey will be the only one left who has served on the state’s intermediate appellate court. And he’s going to be forced off the bench by mandatory retirement in December. Not ideal.

As former Judge Eugene Pigott once said, it is the Justices of the Appellate Division who see how leaveworthy issues percolate in the lower courts and that’s an important perspective to have on the Court of Appeals’ bench. I agree. Indeed, as I said when I looked at the list to replace Judge Stein, “[a]ppellate judging is different than most of the practice of law, and having that experience on the Appellate Division, especially handling high volume caseloads where almost every order is appealable as of right, is valuable insight for a Judge to understand exactly how the Court of Appeals’ holdings will impact the lower courts.” That’s especially so as the Court has severely restricted its discretionary docket over the past few years.

The Governor’s addition of two more downstate judges on the Court, which already had had 5 judges from New York City, again leaves Judge Fahey alone as the only upstater. As I explained before in my personal criteria for Judge picks, that’s a problem. For years, the Court’s caseload has predominantly come from the First and Second Departments. There are many issues that impact upstate differently, and having someone on the Court who can understand those impacts personally is important. These two nominations make it even more important that Judge Fahey is replaced in December by a judge from somewhere other than New York City and Long Island (hint, hint, I think Judge Peradotto fits the bill).

How Do District Attorney Singas’ and Judge Cannataro’s Nominations Impact the Court’s Ideological Divide?

So, what do District Attorney Singas’ and Judge Cannataro’s appointments mean for the Court ideologically? First, let’s think about where we are right now. Chief Judge DiFiore and Judge Garcia make up the Court’s more conservative wing (New York conservative, not typical conservative), and Judges Rivera and Wilson are on the more liberal side. Judge Fahey sits in the middle between the two wings, with a practical perspective on the law that doesn’t strongly put him in either camp.

Although District Attorney Singas is a Democrat, she doesn’t appear to be a staunch liberal who would join Judges Rivera and Wilson. As a career prosecutor, her record has been fairly conservative, much like the Chief Judge’s. She has had nine cases at the Court of Appeals in her terms as the Nassau County District Attorney (none of which she argued). Each time, the DA’s positions sought, unsurprisingly, to keep DA investigation files from inspection under FOIL (see Matter of Friedman v Rice, 30 NY3d 461 [2017]); to allow parents to consent to the recording of phone calls on behalf of their children, which would clear use of those recordings in prosecutions (see People v Badalamenti, 27 NY3d 423 [2016]); and to allow for questioning of a defendant who is represented without his or her attorney present on an different, unrepresented crime (see People v Henry, 31 NY3d 364 [2018]).

District Attorney Singas’ selection should place her on the more conservative wing of the Court with Chief Judge DiFiore and Judge Garcia, both of whom are former prosecutors, much to the defense bar’s chagrin. But she has never been a judge before, so it’s impossible to tell what her judicial philosophy will be until we see how she approaches the Court’s cases at oral argument and in her writings.

Although Judge Cannataro has about 10 years of judicial experience, only three of his opinions have been selected for publication in the Official Reports–a summary judgment order in a personal injury action (see Ramirez v Rosario, 44 Misc 3d 1204[A] [NYC Civ Ct 2014]), a decision on a motion for a default judgment and cross motion to dismiss in a breach of contract case (see Lancman v Rappaport, Hertz, Cherson & Rosenthal, P.C., 44 Misc 3d 1204[A] [NYC Civ Ct 2014]), and a decision on an issue of first impression concerning whether an insurer complied with the insurance department regulations for reimbursement when it pays for services in another state based on that state’s no-fault fee schedule (see Surgicare Surgical v National Interstate Ins. Co., 46 Misc 3d 736 [NYC Civ Ct 2014]). The latter decision is most like what Judge Cannataro will be handling at the Court of Appeals, and his writing provides a few insights to his judicial outlook. After disposing with a few procedural issues, Judge Cannataro turns to the No Fault statutory and regulatory scheme, and notes importantly that the Superintendent of Insurance is granted deference to their interpretations of the insurance regulations. Judge Cannataro proceeds to break down the wording of the regulation’s text, and uses the subsections surrounding the salient provision to provide context to his interpretation. Finally, Judge Cannataro confirms that his interpretation of the regulation comports with the “policy goals” underlying the Legislature’s adoption of the no-fault fee schedule, as shown in the legislative history, as well as “consistency and fairness” in applying the regulation.

It’s the latter point that’s most noteworthy to me. Ensuring that his decision promotes consistency and fairness suggests that Judge Cannataro is willing to look at the policy implications of his decisions at the Court and not be beholden to text that might produce undesirable results. Granted, it’s a one-off decision out of a ten year judicial career, but his public statements seem to back that up. In an interview Justice Cannataro gave last year, he made a point to clarify that judges can understand the issues that litigants face:

The biggest misconception about judges is that we are not sensitive to the needs of the litigants that appear in front of us, and I say this as someone who oversees a court where there are so many unrepresented people from such diverse backgrounds. I think there is a feeling that judges don’t understand what regular people are going through. People tend to forget sometimes that judges are regular people. We come in all different types, sizes, and backgrounds.

amNewYork, A conversation with Judge Anthony Cannataro, Civil Court of the City of New York and Justice of the New York State Supreme Court

Although the lack of published opinions written by Judge Cannataro make predicting his judicial philosophy difficult, I would guess that he will fall on the more liberal wing of the Court, to the left of Judge Fahey, but to the right of Judge Rivera. If that’s true, District Attorney Singas and Judge Cannataro seem to balance each other out ideologically, which makes Judge Fahey (and his upcoming successor) the true swing vote on the Court. We’ll see.

On to Senate Confirmation

Now that Governor Cuomo has made his two selections for the Court of Appeals, the nominees have to go through Senate confirmation (see NY Const, art VI, 2[e]). Normally, the Governor’s picks for the Court of Appeals sail through Senate confirmation without much trouble at all. I expect Judge Cannataro will as well. But it certainly will be interesting to see how the Democratic majority in the Senate handles the confirmation hearings for District Attorney Singas. She appears to be far less progressive than we in New York would expect a Democratic nominee to be, and with the Senate held by a progressive Democratic majority, it’s uncertain how she will be received. Could the Senate refuse to confirm the Governor’s choices and send him back to the drawing board? It’s possible, but very, very unlikely.

Once confirmed, both District Attorney Singas and Judge Cannataro would likely serve out their full 14-year terms on the Court of Appeals bench, and will shape New York law for many, many years to come.

Only two weeks ago, the Commission on Judicial Nomination released the list of candidates to replace Associate Judge Leslie Stein on the Court of Appeals bench when she retires on June 4, 2021. But the Commission’s work wasn’t done. They also have to find a replacement for late Associate Judge Paul Feinman, who retired from the bench surprisingly in late March and passed away only a week later. Judge Feinman’s passing left big shoes to fill at the Court of Appeals. He was the Court’s first openly LGBTQ Judge, and an always thoughtful, moderate voice between the Court’s two wings.

Late last week, the Commission released the list of seven candidates from which Governor Cuomo can select the nominee to fill Judge Feinman’s vacancy.

Although all 45 applicants for Judge Stein’s upcoming vacancy were considered by the Commission for this list to replace Judge Feinman, only two candidates actually made the cut. And they were the two you would expect: Caitlin Halligan and Fourth Department Judge Erin Peradotto. As I explained a few weeks ago, I think they are the clear frontrunners for the Judge Stein vacancy. Where do they fall on this list, though? Let’s take a look.

First, a brief recap of what Governor Cuomo should be looking for in nominees for the Court of Appeals vacancies. As an obvious disclaimer, these are my own personal feelings for what should be considered for a nominee based on the current composition of the Court. Obviously, the Governor will have his own criteria to consider. From my post on the Commission’s list of candidates to replace Judge Stein:

1. Appellate Division experience, or extensive appellate litigation experience: With Judge Feinman’s unexpected retirement from the bench and passing, the Court of Appeals has only two Judges left who were previously appellate judges before they came to the Court, and both Judges Stein and Fahey are retiring this year. That will leave a gaping experiential void in the Court if Governor Cuomo does not replace them with nominees who have similar experiences. Appellate judging is different than most of the practice of law, and having that experience on the Appellate Division, especially handling high volume caseloads where almost every order is appealable as of right, is valuable insight for a Judge to understand exactly how the Court of Appeals’ holdings will impact the lower courts.
2. Diversity: Having Judges on the State’s top court who reflect the composition of the State as a whole is critically important. That means not only ethnic and gender diversity, which would bring new perspectives to the Court at a time when it lost its first LGBTQ Judge, but also geographic diversity. The Court of Appeals is very New York City-centric right now. Before Judge Feinman’s death, 5 of the 7 Judges had their home chambers in the City, and the remaining two are retiring this year. Without adding one or two more Judges from north of Westchester County, the Court will lose important upstate perspectives in its deliberations.
3. Someone who can heal the Court’s divisions: Ok, that’s not a typical quality of an appellate judge, but it was of New York’s greatest Chief Judge Judith Kaye, and it’s sorely lacking in this Court. For example, in 2000, in the middle of Chief Judge Kaye’s tenure as the Chief, the Court of Appeals issued only 13 dissents out of 170 appeals decided. Chief Judge Kaye brought the other Judges together and found ways for the Court to speak with one voice, especially in the most important cases. In 2019, however, that number ballooned to 59 dissents out of 108 appeals. The Court needs a Judge who can start to bring its strong personalities together. These women candidates will be walking in Chief Judge Kaye’s footsteps, and the Governor should consider who is best suited to emulate her example.

For Judge Feinman’s vacancy, the diversity characteristic will obviously be paramount. The Governor will not admit that it is front and center in his mind as he makes the pick, and he has publicly stated that he doesn’t have any “litmus test” for the pick. But replacing the Court of Appeals’ first openly gay judge with a non-diverse nominee is very unlikely. Indeed, a group of LGBTQ+ state lawmakers have expressly called for a nominee who represents the LGBTQ+ community on the bench. On that account, the Commission’s list to replace Judge Feinman delivers.

Michael Bosworth (The Front Runner)

Michael Bosworth is the co-chair of Latham & Watkins’ litigation group, and an all-around superstar litigator. He graduated from Yale Law School, and then clerked for Judge Jed Rakoff in the Southern District of New York, Judge Robert Katzmann at the Second Circuit, and finally Associate Justice Stephen Breyer at the US Supreme Court. He was an Assistant US Attorney in the Southern District of New York in the Complex Frauds and Public Corruption Units, and then was special counsel to the Director of the FBI. If that wasn’t enough to show his legal chops, Bosworth was also Deputy Counsel to President Obama. Oh, and he was named to the National LGBT Bar Association’s Best LGBT Lawyers Under 40 list in 2016. Superstar litigator, young, all the clerkships and credentials, and openly gay. Bosworth has to be the front runner to replace Judge Feinman. And if it’s not him, then it’s…

Caitlin Halligan (The Second Front Runner)

Caitlin Halligan has made the nomination list for the Court of Appeals now four times before. And by the time the Governor picks from this list, she may have already been picked for Judge Stein’s seat (at least that’s what I would guess). She served as New York’s Solicitor General from 2001 to 2007, when Governor Cuomo was then the Attorney General. She was 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. She graduated from Princeton and then Georgetown Law, and clerked for Judge Patricia Wald on the DC Circuit and then for Justice Stephen Breyer on the U.S. Supreme Court. She has the experience, the exemplary credentials, and the connections to be the pick, and she would be first on this list if Michael Bosworth didn’t have equally exemplary credentials.

Hon. Erin Peradotto (The Runner Up)

Also now a four time candidate for a spot on the Court of Appeals, Judge Erin Peradotto of the Appellate Division, Fourth Department has been an appellate judge since 2006, and would bring a very valuable perspective to the Court if she was the choice. She’s a Western New York judge, who works hard to breach divides with her colleagues and has written only 26 solo dissents over her 15 years on the appellate bench. I picked Judge Peradotto as a likely choice back in November, and I’m sticking with her here. She would be a great addition to the Court of Appeals bench.

Hon. Anthony Cannataro (The Dark Horse)

Judge Cannataro is the Citywide Administrative Judge of the Civil Court of the City of New York and is Co-Chair of the Richard C. Failla LGBT Commission of the New York State Courts. As an openly gay jurist with a decade of judicial experience, Judge Cannataro is well qualified to sit on the Court of Appeals bench. Plus, he’s very familiar with the Court, having clerked there for Associate Judge Carmen Beauchamp Ciparick. With Judge Cannataro’s experience as a court administrator, he may be a better pick for a Chief Judge vacancy than to fill Associate Judge Feinman’s seat.

Hon. Judith Gische and Hon. Troy Karen Webber (The Repeat Candidates)

Judges Gische and Webber have both before appeared on the Commission’s list of candidates for the Court of Appeals (Judge Gische, three times in 2015, 2016, and 2017; Judge Webber, once in 2017). Both are seasoned Appellate Division judges from the First Department who could bring a valuable perspective to the Court of Appeals. But neither would have much time left on the bench before they would be forced off the Court by mandatory retirement at 70 years old.

Hon. Denise Hartman (The Seasoned Appellate Litigator)

Although Judge Hartman is now a Court of Claims judge, and acting Supreme Court justice (who decided the anti-vaccination case that was recently affirmed by the Third Department), prior to appointment to the Court of Claims bench, she was a longtime appellate advocate in the Solicitor General’s office. She handled hundreds of appeals on behalf of the State in the state and federal courts, and is widely respected for being a thorough and hardworking jurist. She would be a great pick for the Court of Appeals bench, but with mandatory retirement at 70 years old, she is not very likely to be the nominee.

These are all well qualified candidates for the Court of Appeals, and the Commission did a very good job of putting a list of diverse candidates for the Governor to choose from.

Now, what’s next? The Governor can’t make the pick to replace Judge Feinman until May 14th. Although the Governor only has until May 8th to select from the Commission’s list to replace Judge Stein, there aren’t any consequences if he waits longer. It’s not like one of the candidates on the Stein list would sue to compel him to comply with the Judiciary Law’s timeframes, right? And risk getting stricken from the Governor’s list? I think not. So, I’m going to guess that Governor Cuomo will wait on the Stein pick (she’s still on the Court until June 4th), and announce the two selections together. And for those two, I’m going to go with Caitlin Halligan and Michael Bosworth, with Judge Peradotto coming in close behind. Fear not though, I think Judge Peradotto will be the pick to replace Judge Eugene Fahey when he’s forced to retire in December. And the Court of Appeals will be better for it.

This post also appears on Twenty Eagle, a site like mine devoted to covering the New York Court of Appeals. You can find it here.

Just a little bit ago, Chief Judge Janet DiFiore announced that former Associate Judge Paul Feinman, who had abruptly and unexpectedly retired last week just before the beginning of the March argument session, has passed away. Chief Judge DiFiore released this statement this morning:

Governor Cuomo added his condolences, releasing this statement:

I am stunned. I was privileged to meet Judge Feinman a few times at various NYSBA and Albany County Bar Association events, and he was a kind and intellectually curious man in all of our interactions. He was great to speak with, and even commented on a few of the posts I have written on this site. The personal touch that he made a point to include in our brief conversations struck me and has been a sense of pride for me since.

Judge Feinman was a fantastic jurist, a champion of LGBTQ rights, a trailblazer in the judiciary and the law, and just an overall fantastic human being. He will be missed and may his legacy serve as inspiration for many others who will try to follow in his footsteps. Rest In Peace.

In an entirely unexpected announcement this afternoon, Tuesday, March 23, 2021, just before the Court of Appeals was about to take the bench for its first in-person arguments of 2021, Associate Judge Paul Feinman announced that he was retiring from the bench effective immediately, citing health reasons. Obviously, our first thoughts are of his well-being and I certainly wish Judge Feinman the best in his retirement.

Judge Feinman, the first openly gay judge to sit on the Court of Appeals, joined the Court only back in 2017, and had an very accomplished career up to that point. In his four short years on the Court of Appeals, Judge Feinman has certainly had an impact on New York law that I plan to delve more deeply into as we all have more time to process this surprising announcement. I certainly hope Judge Feinman is able to quickly address whatever health issues prompted his retirement, and he is able to focus primarily on what brings him joy.

For the Court of Appeals, Judge Feinman’s unexpected and immediate retirement leaves the Court with only six Judges, and yet another vacancy to fill after Associate Judge Leslie Stein announced last fall that she would be retiring effective June 4, 2021. So what happens now?

First, for the cases currently on the calendar, the Court will sit, as they did today, as a six member bench. The Court has done this in the past in the interim period before a new Judge is nominated, confirmed, and sworn in. For close cases, though, the margin between a win and a loss just became slimmer. Just because the Court is down to six members, the requirement of four votes to issue a decision does not change.

What happens then if a case is conferenced after argument and the split is 3-3? One of two things. The Judges first will try to find a compromise, whether by narrowing the opinion or sheer acts of persuasion, that garners one of the Judges to switch their vote. And if that doesn’t work, then the Court always has the option to set the case for reargument with a judge vouched in from the Appellate Division or, hopefully, with the newly confirmed Judge likely casting the deciding vote.

As the Court goes about its business deciding cases, the Commission on Judicial Nomination heads back to the drawing board, now with two vacancies to fill. Under Judiciary Law § 68, upon an immediate vacancy in the Court, the Commission has 120 days after being notified of the vacancy to come up with a nomination list of up to seven candidates to send to the Governor. Here is the Commission’s vacancy notice:

In this case, the Commission is already deep in that process for filling Judge Stein’s upcoming vacancy. Nothing in the Judiciary Law or the Commission’s regulations that I have found would prevent the Commission from using the same list as they have put together for Judge Stein’s seat to send to the Governor as choices now to fill Judge Feinman’s. The law says it can take the Commission up to 120 days to create the list; it doesn’t say that the Commission can’t do it in only one.

I would guess that the timeline for replacing Judge Feinman on the Court will move very quickly because of how far along the process is already for filling Judge Stein’s seat. Indeed, the vacancy notice specifically notes that people who have already applied for Judge Stein’s upcoming vacancy do not need to resubmit their applications and will be considered for Judge Feinman’s vacancy as well. Notably, the Commission says it will be sending the nomination list for Judge Stein’s replacement to Governor Cuomo “on or about April 9, 2021,” and will “promptly discharge its Constitutional and statutory responsibilities” to pick Judge Feinman’s successor “swiftly” in light of the “extraordinary circumstances presented by Judge Feinman’s unexpected retirement.” And after all of that, the Commission will have to turn to finding a candidate for Judge Fahey’s seat in December when he is forced off the bench by mandatory retirement.

Starting in January 2022, we will have a completely different Court of Appeals deciding New York’s most important legal issues. Get those applications in now if you’re one of the select few who would be interested in serving on our State’s highest court.

With COVID cases on the decline in New York (7-day rolling average of 3.2% COVID positive tests), and in particular in the Capital Region (7-day rolling average of 2%), the Court of Appeals announced this week that it would return to in-person arguments for its March argument session that begins on March 23rd.

Since the beginning of the COVID-19 pandemic, the Court of Appeals has swung back and forth between in-person and virtual arguments, as it has attempted to keep up with its argument docket. After first deciding to proceed with in-person oral argument for the March 2020 session, and holding the first day of arguments, the Court abruptly postponed the remaining days of argument on March 18, 2020. It then did not hold arguments during the April/May 2020 Session, and went virtual for the June Session.

After the summer brought a period of lower COVID positive numbers, the Court returned to in-person arguments for the fall, but with significant restrictions to ensure the safety of the participants. Only the Judges and counsel were permitted to attend the arguments, and counsel were directed to advocate while seated at counsel table, rather than share the argument podium. In-person arguments continued through the November Session until New York’s COVID numbers spiked again after Thanksgiving. Once it became clear that in-person arguments were not going to be able to be held safely, the Court returned to virtual arguments for the January and February 2021 argument sessions.

As COVID cases have begun to decline in New York once again, the Court is now returning to in-person arguments at Court of Appeals Hall. The Court has advised counsel in the upcoming cases that they may still request permission to argue via videoconference, but the Court’s preference is to go back to more normal operations. This announcement comes only a few days after Chief Judge Janet DiFiore announced in her March 1, 2021 address that New York courts would resume in-person jury trials at the end of March as well. It certainly seems that although virtual arguments before the Court have been going well, the Chief Judge is looking for the Court of Appeals to set an example for the rest of the New York court system for how to safely resume in-person proceedings.

While the Court of Appeals returns to in-person arguments this month, the Appellate Division departments have so far continued their plan to conduct virtual arguments via Microsoft Teams, at least for the next few months. The First Department, for example, announced yesterday that it would remain with virtual arguments for the March and April terms, but would return to in-person arguments on Wednesdays during the May and June terms, with the remaining arguments on Tuesdays, Thursdays, and Fridays, if necessary, being conducted virtually. If NY’s COVID cases continue to decline, as we all hope they will, a return to fully in-person arguments in the Appellate Division can’t be too far behind.