This article first appeared in the December 2020 edition of the NYSBA Journal, which can be found here. A direct link to the article is here.

2020 has been a year unlike any other. With the spread of COVID-19 growing in New York exponentially in March, Chief Judge Janet DiFiore and the entire court system decided to take unprecedented action to limit in-court proceedings to only those essential for the administration of justice. The Court of Appeals was no exception. And yet, through it all, the Court diligently continued its work, deciding novel issues of statewide importance and ensuring that wheels of justice continued to turn. Here’s a quick look back at this extraordinary year at the Court of Appeals.

COVID-19 Brings Social Distancing to the Court of Appeals

Although the Court at first decided to proceed with the oral arguments scheduled for its March session in person, with an option for argument by videoconference, only the first day of argument ended up going forward. It was a remarkable sight to see the Court 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 Judges Fahey, Garcia, Wilson, and Feinman spread out along the bench behind them. As they say, a picture is worth a thousand words:

Behind the advocates was an eerily empty courtroom that echoed with each argument. As the pandemic continued, the Court decided to take a small number of its April/May Session arguments on submission, and then in June, held virtual arguments for the first time in the Court’s history. Even now when arguments are back to being heard in person, only the Judges and the advocates are allowed in the courtroom, everyone is wearing masks, the argument podium has been removed, and counsel are arguing the most important cases in the state seated at tables like it’s a roundtable discussion on the finer points of New York law. These are remarkable times.

The Court of Appeals’ Business Continues Nevertheless, But at a Reduced Volume

Even with the pandemic whirling around us, the Court of Appeals continued its regular practice of deciding cases about 30 days after they were argued, and handed down a number of noteworthy decisions this year. The total number of appeals that the Court has decided, however, has decreased considerably. For example, between 2017 and 2019, the Court decided an average of 128 appeals per year (approximately 99 in the normal course on full briefing and oral argument, and 29 on the sua sponte merits track on letter briefing only per year). This year, in contrast, through the end of October, the Court has decided 45 appeals in the normal course and 16 appeals on the sua sponte merits track. If that pace continues, the Court will end up deciding only about 76 appeals this year, which is well below its average for the last three.

Although much of the decline can be chalked up to dealing with the COVID-19 pandemic, the reduction in the total volume of appeals that the Court of Appeals decides is consistent with a troubling trend that can be observed over the last number of years. Between 2010 and 2016, the Court decided an average of 234 appeals per year, about 190 of which were in the normal course with oral argument. But in 2017, that number began to dip significantly. That year, only 142 appeals were decided, 110 of which were following full briefing and oral argument. In 2018, it was 136 appeals (104 in the normal course), and in 2019, it was down to 108 appeals (only 83 in the normal course).

The significant reduction in the Court’s caseload means that it is not only much harder to get a case to the Court of Appeals (the Court granted only 2.1% of its civil motions for leave to appeal in 2019, and has granted leave in only 20 civil cases this year so far), but also to get women and other historically underrepresented groups opportunities to argue in our state’s highest court. In 2019, for example, the Court of Appeals heard 168 total oral arguments, only 50 of which were given by women. Although the 30% rate is larger than the rate seen at the United States Supreme Court, for example, the rate masks a significant divide between arguments in criminal cases and those in civil cases. Women argued in 44% of criminal cases in 2019 (31 criminal arguments out of 71 total), but only 20% of civil cases (19 civil arguments out of 97 total). The 168 total available argument spots in 2019 was down from the 372 total available arguments in 2016 and the 420 total available arguments in 2012.

In 2020, the Court of Appeals heard only 115 oral arguments (42 in criminal cases, 73 in civil cases), well off the pace of last year because the pandemic forced the Court to cancel all but one argument day in March, April, and May. Again, there is a marked divide in the rate of arguments by women in civil and criminal cases. Although women have argued 50% of the criminal cases this year (21 out of the 42 available arguments), they have only argued 25% of the civil cases (18 out of 73 arguments). It’s time for the Court tackle this issue head on. Besides granting leave to appeal in more cases to provide more total opportunities for argument in the state’s most important cases, the Court should, at the very least, amend its rules to expressly encourage arguments by women and other underrepresented advocates in our state’s highest court.

Now, on to this year’s most notable Court of Appeals decisions:

Matter of Vega (Postmates Inc.—Commissioner of Labor), 35 NY3d 131 (Mar. 26, 2020): In a decision that could significantly drive up costs for businesses in the gig economy, the Court held that couriers for Postmates—a delivery business that uses a website and smartphone app to coordinate deliveries from restaurants and stores to people across the country—are employees, not independent contractors, requiring Postmates to make unemployment insurance contributions for them. The Court held that Postmates exercised more than incidental control over the couriers’ work by “dictating to which customers they can deliver, where to deliver the requested items, effectively limiting the time frame for delivery and controlling all aspects of pricing and payment,” even though the couriers could choose their own work schedules and delivery routes. Although this decision was made in the context of unemployment insurance, its rationale for holding the gig economy couriers to be employees could also have significant impacts in wage and hour cases based on the misclassification, and could establish that the couriers should be entitled to a number of other employment rights that are typically afforded to employees, but denied to independent contractors.

Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173 (Mar. 31, 2020): What lawyer hasn’t worried that a client may one day sue over legal advice that was given during the course of a representation? If you have, this Court of Appeals decision is worth reading. Narrowing the possible avenues for such a suit against lawyers and law firms, the Court held that claims brought under Judiciary Law § 487 (1), which provides that an attorney “who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is guilty of a misdemeanor and may be liable to the injured party for treble damages in a civil action, does not “extend to negligent acts or conduct that constitutes only legal malpractice,” and does not cover pre-suit advice. Thus, the Court affirmed the dismissal of a section 487 (1) claim against a law firm that had alleged the plaintiffs were “induced to file meritless lawsuit based on misleading legal advice.”

Matter of Regina Metropolitan Co., LLC v New York State Div. of Hous. & Community Renewal, 35 NY3d 332 (Apr. 2, 2020): In a case that was poised to have a huge impact on rent stabilized housing in New York City and on landlords in particular, the Court of Appeals held that the proper method for calculating the recoverable rent overcharges for apartments that were improperly removed from rent stabilization during receipt of J-51 benefits was to start with the rent charged four years before the case was filed, adding any legal increases that applied during the statute of limitations period, and then compute the difference between the legal rent and the rent that was actually charged. Resolving a previously unsettled question, the Court held that the rental history that occurred before the four-year lookback period could not be considered. Notably, however, the impact that this decision could have had was largely muted when, while these appeals were pending, the Legislature amended the Rent Stabilization Law to change the rent overcharge calculation. Although the tenants asked the Court to apply the new amendments retroactively to their cases, the Court declined to do so because it would have imposed a huge unexpected liability on the apartment owners that was not contemplated under the pre-amendment RSL, and would not have comported with due process.

Colon v Martin, 35 NY3d 75 (May 7, 2020): When a claimant looks to sue a municipality in tort, they must first serve the municipality with a notice of claim. Under General Municipal Law § 50-h, the municipality has the right to depose the claimant before an action is commenced. Resolving a matter of first impression, the Court of Appeals held that when there is more than one claimant named in a notice of claim, the municipality has the right to depose each separately outside the presence of the other. The statute’s reference to permitting the claimant to have “such examination in the presence of his or her own personal physician and such relative or other person as he or she may elect” refers only to the physical examination contemplated by the statute, not to the oral deposition. Thus, failure of the claimants to accede to the municipality’s request to conduct separate section 50-h depositions warranted dismissal of the action.

Matter of National Fuel Gas Supply Co. v Schueckler, 35 NY3d 297 (June 25, 2020): Given New York’s bountiful oil and natural gas reserves, development of interstate transmission lines has consistently been proposed across the state. In the course of those projects, development companies generally must establish, under Eminent Domain Procedure Law § 204 (B), that the projects have a public benefit before the companies may exercise eminent domain powers to take the easements necessary to build the pipeline. In NFG, the Court of Appeals was asked whether a company that has been issued a Federal Energy Regulatory Commission certificate of public convenience and necessity for a project, based upon a review similar to that required under EDPL 204 (B), could continue to exercise eminent domain powers even if the New York State Department of Environmental Conservation had denied a required water quality certification for the project. The Court held that it could. The DEC’s denial of the water quality certification did not impair the validity of the FERC certificate of public convenience and necessity, the Court held, because the FERC certificate only conditioned construction of the project on receipt of the water quality certificate; it did not condition the exercise of eminent domain powers.

People v Hinshaw, 35 NY3d 427 (Sept. 1, 2020): The Court of Appeals’ precedent, especially when it concerns the constitutional rights of criminal defendants, regularly shows that the state constitution continues to play a significant role in protecting the rights of New Yorkers. This time, the Court clarified that, under the state constitution, New York requires probable cause of a traffic infraction for law enforcement to conduct a traffic stop of a car, or reasonable suspicion that a crime has been committed. As the Court noted, this upholds New York’s tradition of providing more protection for New Yorkers under the state constitution than is otherwise provided under the federal constitution, which permits traffic stops based only upon reasonable suspicion.

Hewitt v Palmer Veterinary Clinic, PC, __ NY3d __, 2020 NY Slip Op 05975 (Oct. 22, 2020): As everyone remembers from law school, pet owners get one free bite before they can be held strictly liable for injuries that their pets cause. The one free bite rule is essentially a notice requirement; once a pet owner knows that their pet has vicious propensities because the pet has bitten or injured someone before, the owner may be held liable without regard to their negligence for any subsequent injury that the pet causes. The one free bite prior notice rule, however, doesn’t apply to veterinary clinics, the Court of Appeals held in Hewitt. Veterinary clinics are already on notice of the dangers that may exist in their waiting rooms when a pet that is ill, distressed, or has just been treated is brought into that space. Indeed, the Court held, because the clinics have “specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed” and “are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk,” no prior notice of an animal’s vicious propensities is required before the clinic may be held liable for injuries caused by a pet in the clinic’s waiting room.

The Court of Appeals Expands Digital Filings and Amends Service Requirements

Whether due to the COVID limitations on in-person filings, or the Court just decided it was time to expand electronic filings, the Court amended its rules, effective May 27, 2020, to require, for the first time, parties to file digital copies of all civil motions and opposing papers to those motions, and jurisdictional inquiry responses. Before this amendment, the Court’s rules had limited digital filings to the briefs and records filed on appeals. Unlike filing on the NYSCEF system, however, the digital filing does not actually constitute service or filing of the motion. That’s still governed by the CPLR and when the paper copy of the motion papers hits the counter in the Clerk’s Office and is stamped received. But the new rule amendments provide that the parties have 7 days after the return date of the motion to upload their digital copies of the motion papers.

What’s most notable about this rule change to me is that the Court is significantly reducing the amount of printed paper copies of the motion papers that have to be filed in the Clerk’s Office (from 6 copies to 1), and eliminating entirely the requirement to file paper copies of the Appellate Division briefs and record that must normally accompany civil motions for leave to appeal. Another change to note: under the Court’s rules, counsel used to have to serve the other side with two copies of a motion for leave to appeal, and the affidavit of service needed to note specifically that two copies were served. No longer. Now, only one copy of the motion needs to be served.

Looking to 2021 at the Court of Appeals

Throughout 2020, the Court of Appeals has adapted to the difficult times, shifted its procedures to ensure the safety of its staff and the parties that appear before it, and set a great example for how to remain productive during an unprecedented pandemic. Looking to next year, the Court will decide another slate of novel issues, including whether the state constitutional ban on gambling precludes the legislature from authorizing daily fantasy sports without a constitutional amendment and whether the Forever Wild clause of the New York Constitution precludes the State from cutting the trees necessary to create community connector snowmobile trails throughout the Adirondacks, but will be doing so with a new Associate Judge on the bench.

On November 2, 2020, Associate Judge Leslie Stein announced that she will be retiring from the Court of Appeals bench effective June 4, 2021. That was very surprising news. Judge Stein, who joined the Court in 2015, was not slated to reach mandatory retirement until 2026. Her decision to retire now opens two seats on the bench in 2021, along with Associate Judge Eugene Fahey, who will be forced into mandatory retirement on December 31, 2021. With Judge Stein’s upcoming retirement, the Court will lose a distinguished jurist who often found herself as the deciding vote in split cases, and Governor Andrew Cuomo will have yet another chance to appoint a new Judge to our state’s highest bench (this will be his ninth appointment to the seven-member bench). With all of this change ahead, 2021 is sure to be another exciting year at the Court of Appeals.

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!