Passing of New York Court of Appeals Judge Shelia Abdus-Salaam is a Tragic Loss for New York

As has been reported by numerous outlets, including the New York Law Journal, New York Times, and New York Daily News, among others, the Court of Appeals family lost Associate Judge Shelia Abdus-Salaam on Wednesday when her body was discovered on the banks of the Hudson River.  Judge Abdus-Salaam was the first African-American and Muslim woman appointed to the Court, and was a tremendous jurist and an even better person by all accounts.

Judge Abdus-Salaam’s death is a tragic loss not only for the Court, but for all of New York.  Her impact on New York law in her four short years on the Court will be long felt, and will help to define her impeccable legal legacy.  During her tenure on the Court, Judge Abdus-Salaam wrote 57 opinions and 19 dissents, including many in notable cases.  Here are just a few:

Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1 [2016])

Judge Abdus-Salaam’s opinion in Brooke S.B. will likely go down as her most important decision.  Prior to the ruling, the Court of Appeals had previously held in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]) that, “in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child’s ‘parent’ for purposes of standing to seek custody or visitation under Domestic Relations Law § 70(a), notwithstanding their ‘established relationship with the child.’”  Brooke S.B., 28 NY3d at 13. Concluding that the time had come to revisit that 25-year old rule “in light of more recently delineated legal principles,” Judge Abdus-Salaam, writing for the unanimous Court, overruled Alison D. and held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.”  Id. at 14.

Judge Abdus-Salaam’s opinion opened visitation and custody rights to same-sex partners, rights that had been previously denied under Alison D., as Chief Judge Judith Kaye had decried in her dissent in that case.  As Judge Abdus-Salaam put it,

in the 25 years since Alison D. was decided, this Court has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term “parent.” Now, we find ourselves in a legal landscape wherein a non-biological, non-adoptive “parent” may be estopped from disclaiming parentage and made to pay child support in a filiation proceeding, yet denied standing to seek custody or visitation. By creating a disparity in the support and custody contexts, Alison D. has created an inconsistency in the rights and obligations attendant to parenthood. Moreover, Alison D.’s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York State, and the United States Supreme Court’s holding in Obergefell v. Hodges, which noted that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples.

Under the current legal framework, which emphasizes biology, it is impossible—without marriage or adoption—for both former partners of a same-sex couple to have standing, as only one can be biologically related to the child. By contrast, where both partners in a heterosexual couple are biologically related to the child, both former partners will have standing regardless of marriage or adoption. It is this context that informs the Court’s determination of a proper test for standing that ensures equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents.

Id. at 24-25 (cleaned up).  Judge Abdus-Salaam’s overruling of Alison D. signaled a monumental shift in New York law, one that will have many long lasting impacts on children and families across the state.  Judge Abdus-Salaam’s opinion in Brooke S.B. can be found here.

Jacobsen v New York City Health and Hosps. Corp. (22 NY3d 824 [2014])

Judge Abdus-Salaam’s opinion in Jacobsen helped to define the extent of an employer’s responsibility to investigate a disabled employee’s request for an accommodation under the New York State Human Rights Law.  As Judge Abdus-Salaam’s reasoning points out,

in amending the State HRL, the legislature evidently concluded that an employer cannot disadvantage a disabled employee based on a generalized sense that disabilities of the kind suffered by the employee can rarely be accommodated and that the employee is unlikely to be able to satisfy his or her employment responsibilities. Given that legislative finding, we are bound to interpret the State HRL’s definitions of “reasonable accommodation” and “disability” to require that, where the employee seeks a specific accommodation for his or her disability, the employer must give individualized consideration to that request and may not arbitrarily reject the employee’s proposal without further inquiry.

Furthermore, this interpretation of the statute, which makes a dialogue about the reasonableness of the employee’s proposed accommodation relevant to the “reasonable accommodation” analysis, comports with the legislature’s goal of encouraging employers to voluntarily integrate disabled employees into the workplace through fair-minded discussion instead of obstinately refusing any accommodation and forcing employees to pursue costly litigation. By speaking openly about an employee’s impairment and the employer’s ability to adjust its practices to meet the employee’s needs, the parties may come to a mutually beneficial arrangement which ensures that the disabled individual has a fair opportunity to work, provides the employer with the advantages of a productive and qualified disabled employee, and forestalls needless litigation. The statute prizes reasonableness, and nothing can be more reasonable than an open-minded discussion resulting in a viable compromise.

Id. at 836-837 (cleaned up).  As a result of Judge Abdus-Salaam’s opinion, New York’s disabled workers are entitled to a chance to work with their employers to achieve a reasonable accommodation that will allow them to continue to work following their disability.  A copy of Judge Abdus-Salaam’s opinion can be found here.

Sierra Club v Vil. of Painted Post (26 NY3d 301 [2015])

In an opinion further opening the door to the courthouse in environmental cases, Judge Abdus-Salaam clarified when a plaintiff has standing to challenge an environmental review conducted by an agency under the State Environmental Quality Review Act.  Judge Abdus-Salaam clarified that although the harm sufficient to establish standing in environmental cases “must be specific to the individuals who allege it, and must be different in kind or degree from the public at large, . . . it need not be unique.”  26 NY3d at 311 (cleaned up).  As Judge Abdus-Salaam explained, it cannot be that “because there are multiple residents who are directly impacted, no resident of the Village would have standing to challenge the actions of the Village, notwithstanding that the train noise fell within the zone of interest of SEQRA. That result would effectively insulate the Village’s actions from any review and thereby run afoul of our pronouncement that the standing rule should not be so restrictive as to avoid judicial review.”  Id.

Judge Abdus-Salaam’s opinion in Sierra Club can be found here.

Matter of New York City Asbestos Litig. (27 NY3d 765 [2016])

In the New York City Asbestos Litig., Judge Abdus-Salaam was called on to decide “when, if ever, a manufacturer must warn against the danger inherent in using the manufacturer’s product together with a product designed and produced by another company.” 27 NY3d at 778.  Deciding that the duty to warn extends to when a manufacturer’s non-asbestos product is used jointly with a third party’s asbestos-laden product, Judge Abdus-Salaam’s opinion weighs the relative moderate cost of issuing a warning against public safety considerations and “the long-standing public policy underlying products liability in New York.  As we observed long ago, today as never before the product in the hands of the consumer is often a most sophisticated and even mysterious article, and given the practical inability of the users of modern products to detect the dangers inherent in their operation, from the standpoint of justice as regards the operating aspect of todays products, responsibility should be laid on the manufacturer, subject to the limitations we set forth.  Where two products are used together, the user has even less ability to comprehend the risk without a warning from the manufacturers because he or she rarely has access to sufficient technical information about both products to anticipate the perils of their joint use.”  Id. at 792-793 (cleaned up).  Thus, Judge Abdus-Salaam held, the duty to warn must fall on the manufacturer.  As can be expected, Judge Abus-Salaam’s opinion, which can be found here, has had and will continue to have a great impact on products liability law in New York.

Judge Abdus-Salaam’s writings while at the Court of Appeals touched many areas of New York law in ways that will be felt for a long time to come.  She will be greatly missed by the Court of Appeals family, the bench, the bar, and all of New York.

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