On Thursday, Governor Andrew Cuomo announced his nomination to fill the Court of Appeals seat left vacant by the tragic death of Associate Judge Shelia Abdus-Salaam. His pick: First Department Judge Paul G. Feinman, who not only brings more than 20 years of experience on the trial and appellate bench to the Court—a welcome addition—but who also will be the Court’s first openly gay judge. Here’s Judge Feinman’s bio:
Needless to say, this is a momentous pick for the Governor, who has now also appointed the first African-American female judge (Shelia Abdus-Salaam) and the first Latino male judge (Michael Garcia) to the Court. Congratulations for the pick rolled in quickly, including from the New York State Bar Association and the LGBT Bar Association of Greater New York, among others.
Judge Feinman, by all accounts, is an outstanding jurist who will have big shoes to fill. As I wrote in the wake of her death, Judge Abdus-Salaam’s decisions cemented her legacy on the Court as a smart and thoughtful judge who had a profound impact on New York law. A review of Judge Feinman’s decisions shows he should follow in Judge Abdus-Salaam’s footsteps.
Having sat on the First Department for the past five years, Judge Feinman’s extensive experience resolving commercial cases will be an asset to the Court. For example, in what should be Judge Feinman’s last opinion on the First Department, he dismissed a case alleging a scheme to defraud a Saudi Arabian residential real estate developer out of hundreds of millions of dollars owed to it by the Saudi government as time-barred under New York’s date of discovery rule for fraud claims (see MBI Intl. Holdings Inc. v Barclays Bank, PLC, 2017 NY Slip Op 04381 [1st Dept June 1, 2017]). In doing so, Judge Feinman reaffirmed the nearly 125-year-old rule that a person who thinks he or she may have been defrauded has a duty to inquire, and failure to do so when the fraud could have been reasonably ascertained may leave the claims time-barred if not brought within 2 years thereafter.
Judge Feinman also made significant contributions to defamation law in New York (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 37-38 [1st Dept 2014] [adopting test for defamation by implication: “To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.”]), and to the rights of criminal defendants, among many other areas (see People v Hoey, 145 AD3d 118 [1st Dept 2016] [“defendant’s absence from colloquies before the trial judge relating to the admissibility of evidence of uncharged crimes and bad acts allegedly committed by defendant against his girlfriend, and others, deprived him of his right to be present at all material stages of the trial”]).
The next step in Judge Feinman’s nomination is a confirmation hearing before the Sebate. The Senate typically has 30 days to hold the hearing, but they are currently scheduled to end the legislative session and leave Albany this Wednesday, June 21st. That leaves an incredibly short window for the Senate to schedule and hold a confirmation hearing. But, after being so wrong about just how quickly this nomination process could go, I know now not to question whether it will get done in time before the end of the June legislative session. So, there you have it, from Judge Abdus-Salaam’s death in early April to a new Court of Appeals Judge at the end of June.
Judge Feinman is only 57 years old, so he should be able to serve 13 years of his 14-year term, until the New York Constitution’s mandatory retirement provision forces him off the Court at the end of 2030. Barring anything else unforeseen, the next nomination to the Court of Appeals won’t come until 2022, with the mandatory retirement of Judge Eugene Fahey. After the frequent judicial turnover at the Court over the last few years, having five years without any changes on the bench will be most welcome.