Commission on Judicial Nomination Releases the List to Fill Associate Judge Paul Feinman’s Seat on the Court of Appeals

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.

New York Court of Appeals Holds that the Destruction of Timber to Create Snowmobile Trails in the Adirondacks Violates the Forever Wild Clause of the New York Constitution

In a huge win for the New York State Forest Preserve, and those like me who love it, the Court of Appeals this morning held that the State’s destruction of thousands of trees to build 12-foot wide community connector snowmobile trails throughout the Adirondack Park violates the Forever Wild clause of the New York Constitution. The Court made clear that the Constitution forbids the State from unilaterally permitting projects like this one to be built in the Forest Preserve, without first giving the People of this State an opportunity to decide by voting on a constitutional amendment.

Starting with the legislative background that led up to the adoption the the Forever Wild clause of the Constitution, the majority noted that legislative attempts to protect the wild forests in the Adirondacks had proven ineffective. With that understanding, the majority noted, the delegates to the 1894 constitutional convention “were determined to maintain the wild forest nature of the Preserve—’these wide-spread evergreen woods’—both because of their value as a ‘great resort for the people of this State’ and as a singular ‘capacious cistern, extending over this region’” (Opn, at 6-7). The intent of the Forever Wild clause drafters was clear:

The proposal was revised to ban the leasing of the land and the removal or destruction of timber. As revised, the amendment garnered unanimous support from the 1894 Constitutional Convention delegates and was submitted to a vote of the electorate and approved by the people of the State of New York. The drafters conceived that any use of the Forest Preserve contrary to the constitutional mandate may only be accomplished by an amendment approved by the electorate. The legislature, by more than a century of popular referenda proposing constitutional amendments for projects large and small within the Forest Preserve, confirmed and honored the Convention’s solution. Thus, since becoming law in 1895, the people of New York have voted to amend article XIV, § 1, a total of 19 times to permit specific encroachments on the Forest Preserve.

This intent is seen in the Forever Wild clause’s plain language: “The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.” That is a strict prohibition.

And although the Court had recognized nearly 100 years ago that the Forever Wild clause’s commands must be interpreted reasonably to permit nonsubstantial and nonmaterial removal of trees, the intent that a constitutional amendment is required every time a substantial project is proposed in the Adirondacks and Catskills has remained unchanged. Indeed, the majority reasoned,

Notably, the majority rejected the State’s attempt to introduce a balancing test that would have allowed the DEC to balance policy interests against environmental preservation in determining whether a proposed development project in the Forest Preserve is permitted under the Forever Wild clause. The interest in providing more access to the Adirondacks is laudable, the majority noted, but the Forever Wild clause protects the forest in its most primitive state. That is precisely why the 1894 constitutional convention delegates took that decision out of the hands of bureaucrats in the first place. It is for the People to decide when a proposal is so worthwhile that the Constitution should be amended to permit it.

This is a strong decision that will go a long way to ensure that New York’s wild forests in the Adirondack and Catskill Preserves are protected by the will of the People for centuries to come. And that is exactly how it should be.

**Disclaimer: My firm and I were proud to represent the Adirondack Council and Adirondack Wild: Friend of the Forest Preserve in filing an amicus brief in this case. A copy of our amicus brief is here:

Supreme Court Will Take Up Second Amendment Challenge to NY’s Gun Laws

For the first time in more than a decade, the Supreme Court will review a Second Amendment challenge to a state’s gun laws, and this time New York’s law is in the crosshairs. The Court on Monday granted certiorari in New York State Rifle & Pistol Association v. Corlett, in which the Second Circuit affirmed the constitutionality of New York’s gun licensing regime, to resolve a circuit split and decide the question left open in District of Columbia v. Heller: “[w]hether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense” (Petition for Certiorari, No. 20-843, pg. i).

This is a major gun rights case, involving an issue that advocates have pressed the Supreme Court to take up for years. Now with a strong conservative majority on the Court, this challenge to New York’s gun laws could be the one cited decades from now as establishing the right to carry a gun for self-defense anywhere you go without limitation by the state. Or it could be the case where the Supreme Court once again reaffirms reasonable state regulation of the right to bear arms for self-defense while in public. Given the huge stakes at play, and New York’s gun licensing laws at the center of it all, let’s take a step back through the Supreme Court’s Second Amendment precedent to see how we got here.

The Second Amendment and the Supreme Court’s Opinion in Heller

As in all cases of constitutional interpretation, we start with the text. The Second Amendment to the U.S. Constitution provides:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In the Supreme Court’s landmark Second Amendment gun rights opinion in Heller, Justice Scalia broke down the meaning of those words in great detail and ultimately concluded that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” Heller, 554 U.S. 570, 592 (2008). The Court acknowledged that that individual right is not unlimited, however. As Justice Scalia put it: “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626.

Some state regulation of the right to keep and bear arms is permissible, but to what extent? In Heller, the Supreme Court struck down D.C.’s strict gun laws that banned handgun possession in the home and required any guns in the home to be rendered inoperable, the very place where the need to be able to defend yourself and your family is most acute. But Heller did not address the question that the Supreme Court will now consider: does the Second Amendment right to bear arms extend to unfettered carrying for self defense outside of the home?

New York’s Gun Licensing Scheme

For more than a century in New York, the State has required anyone who wants to possess and carry concealable firearms—a term that includes most handguns, but excludes most rifles and shotguns—to obtain a license to do so (see N.Y. Penal Law § 265.00[3]). The State has adopted separate licenses and standards for in-home possession of firearms and for carrying in public. For a “premises” license, a person need only show that they are at least 21 years old (unless honorably discharged from the military), “of good moral character,” not a felon, not on the run from the law, and not mentally ill, among other things (see N.Y. Penal Law § 400.00[1]). For a carry license, there are a limited few who are entitled to a carry license because of their employment as armored bank messengers, corrections officers, or state judges (but only in the First and Second Departments; sorry, upstate judges, you’re out of luck) (see N.Y. Penal Law § 400.00[2][c]-[e]).

For everyone else, they must show “proper cause” for issuance of a carry license, meaning that the firearm is needed “for target practice, hunting, or self-defense” (New York Brief in Opposition, at 5, quoting Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 86 [2d Cir. 2012]; see N.Y. Penal Law § 400.00[2][f]). For the former two categories—target practice and hunting—New York issues restricted licenses that limit the legal possession of the firearms to those uses. A carry license for self-defense, on the other hand, is an unrestricted license, and so it carries a higher standard that the applicant must satisfy. In particular, to show that you should be issued an unrestricted license for self-defense, you have to establish “an actual and articulable—rather than merely speculative or specious—need for self-defense” (NY BIO, at 5, quoting Kachalsky, 701 F.3d at 98). The petitioners in New York State Rifle & Pistol Association challenge the “proper cause” requirement for issuance of an unrestricted carry license, arguing that it violates their Second Amendment rights.

The Second Circuit Rejects a Prior Second Amendment Challenge to New York’s Proper Cause Requirement

This isn’t the first time that New York’s gun licensing regime has been challenged, however. In Kachalsky, the Second Circuit rejected an identical Second Amendment challenge to New York’s proper cause requirement for an unrestricted carry license for self-defense in public, distinguishing it from the Supreme Court’s opinion in Heller, which was focused on Second Amendment rights within the home. As the Second Circuit explained, state regulation of carrying firearms in public is enshrined within the Second Amendment. But that regulation must satisfy intermediate scrutiny to pass constitutional muster under the Second Amendment. The Second Circuit held that New York’s proper cause licensing regime did. “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention” (Kachalsky, 701 F.3d at 97). And, the Second Circuit concluded, the proper cause requirement for an unrestricted firearms license for self-defense was substantially related to those interests. In particular, the Court noted that New York’s legislature had concluded, more than 100 years before, that the proper cause requirement limiting those who could carry firearms in public would help reduce violence and assist police in their daily jobs to protect the public. Indeed, the Court explained,

Restricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York’s interests in public safety and crime prevention. It is not, as Plaintiffs contend, an arbitrary licensing regime no different from limiting handgun possession to every tenth citizen. This argument asks us to conduct a review bordering on strict scrutiny to ensure that New York’s regulatory choice will protect public safety more than the least restrictive alternative. But, as explained above, New York’s law need only be substantially related to the state’s important public safety interest. A perfect fit between the means and the governmental objective is not required. Here, instead of forbidding anyone from carrying a handgun in public, New York took a more moderate approach to fulfilling its important objective and reasonably concluded that only individuals having a bona fide reason to possess handguns should be allowed to introduce them into the public sphere. That New York has attempted to accommodate certain particularized interests in self defense does not somehow render its concealed carry restrictions unrelated to the furtherance of public safety.

The Plaintiffs Bring a New Second Amendment Challenge to the Proper Cause Requirement Angling to Overturn Kachalsky and Establish an Unrestricted Right to Carry Firearms in Public

Notwithstanding that the Second Circuit had already rejected an identical Second Amendment challenge to the proper cause requirement in Kachalsky, the plaintiffs in New York State Rifle & Pistol Association—two individuals who were denied unrestricted licenses, but were issued restricted licenses instead, upon the determination that they did not satisfy the proper cause requirement, and an affiliate of the NRA—brought a new Second Amendment challenge. The State, relying on the binding precedent in Kachalsky, moved to dismiss. The District Court for the Northern District of New York dismissed the challenge, holding that it was bound by Kachalsky, notwithstanding the plaintiffs’ arguments that the case was wrongly decided. In a summary order noting its prior rejection of the very same arguments in Kachalsky, the Second Circuit affirmed.

But relief at the Second Circuit never seemed to be the goal of the litigation anyway. With a conservative majority on the Supreme Court, one that was strengthened by the appointment of Justice Amy Coney Barrett last fall, the plaintiffs appear to have been using the litigation to get the Second Amendment issue involving the right to carry firearms in public, which was left open in the Supreme Court’s opinion in Heller, back to the Court. And they succeeded.

Notwithstanding New York’s arguments that the circuit split the plaintiffs argued existed was illusory, that this case wasn’t the proper vehicle for addressing this significant Second Amendment issue, and that New York’s firearm licensing regime falls well within the State’s regulatory powers under the Second Amendment, the Supreme Court granted certiorari and will review the case next term. As many commenters more qualified to opine than I have noted, this is a huge gun rights case that will be cited for decades to come. And New York is right smack in the middle of it all. This will be very interesting to watch, as merits and amici briefing rolls into the Supreme Court over the next few months.

For those interested, the petition for certiorari, New York’s brief in opposition, the petitioners’ reply, and the appendix containing the decisions and statutes under review are here:

Commission on Judicial Nomination Selects 7 Women Candidates for Court of Appeals Vacancy for the First Time in NY History

This post first appeared as a guest post on Twenty Eagle, a blog like mine devoted to covering the New York Court of Appeals. Check it out here!

For watchers of the New York Court of Appeals, this is the Super Bowl. This year is the first in almost 30 years that the Court of Appeals will have three vacancies on the bench. And the Judges who are chosen to fill those openings will most certainly change the Court’s dynamics for years to come.

Understanding the importance of the moment, the Commission on Judicial Nomination began the process of filling the first of the three vacancies yesterday when it sent to the Governor a list of 7 candidates for nomination to the Court of Appeals who are all women. That’s a first in New York’s legal history. Before this, the Commission has only picked at most 4 women for the list (3 times, only recently: 2012, 2014, and 2017). But now, by choosing women candidates for all 7 slots, the Commission has guaranteed that Governor Cuomo’s next nominee to the Court will be the next woman Judge on the state’s top court.

The list to fill the vacancy when Associate Judge Leslie Stein retires on June 4, 2021 is not only all women, it is also fairly diverse. According to the Commission’s press release, more than half of the applicants were women and 31% had diverse backgrounds:

Altogether, 45 candidates submitted applications to the Commission. Of those 45 candidates, 11 previously submitted applications for at least one prior vacancy and 34 candidates newly applied for the current vacancy. Female candidates submitted 26 (57%) of the applications; and candidates of diverse backgrounds submitted 14 (31%) of the applications.

So, who are the candidates that the Commission has chosen for the Governor’s consideration? Let’s take a look.

That’s an impressive group. There are three current Appellate Division Justices (two from upstate in the Fourth Department) when the Court of Appeals will be losing its last Judge with prior Appellate Division experience when Judge Eugene Fahey is forced to retire in December. There’s a Court of Claims judge who has extensive experience in the kinds of criminal cases that make up a large portion of the Court of Appeals’ docket, and the Nassau County District Attorney. And two distinguished attorneys in private practice, both of whom have made this list before.

Thinking of the Court’s current composition, here are a few things I think Governor Cuomo should be looking for in a nominee 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.

Obviously, those are not the only things that Governor Cuomo will consider when he’s choosing a nominee. He’ll also want the choice to have exemplary credentials. Political connections will make a difference too, of course, especially with the New York Senate, the body that confirms the Governor’s choice for the Court, now under the Democrats’ super-majority control. And the candidate will have a better chance to be the nominee if they have made the Commission’s list before for previous openings on the Court.

Weighing all of those factors together, here are my guesses for which of the seven women have the best shot to be the pick:

Caitlin Halligan (The Favorite)

As I noted when Judge Stein announced her retirement, Caitlin Halligan has made the nomination list for the Court of Appeals three times before, twice in 2015 for the Chief Judge’s and Judge Susan Phillips Read’s seats and in 2016 for Judge Eugene Pigott’s seat. She served as New York’s Solicitor General from 2001 to 2007, when Governor Cuomo was then the Attorney General. And 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 a great one.

Hon. Erin Peradotto (The Runner Up)

Also a three 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.

Kathy Chin (The Repeat Candidate)

Kathy Chin is a well-respected health care attorney and real estate litigator at Crowell & Mooring in New York City, and she has made this list twice before, in 2012 and 2014. She is a Princeton and Columbia Law graduate, and has been appointed to the Commercial Division Advisory Council and to the First Department Judicial Screening Committee. If nominated and confirmed to the Court, Ms. Chin would be the first Asian American Judge to ever sit on the Court of Appeals bench. And if she was picked, she would join her husband, Hon. Denny Chin of the U.S. Court of Appeals for the Second Circuit, on the appellate bench.

Hon. Valerie Braithwaite Nelson and Hon. Shirley Troutman (The Newcomers)

Judges Braithwaite Nelson and Troutman are very similar. They are both sitting Appellate Division Justices, Braithwaite Nelson in the Second Department and Troutman in the Fourth Department. Governor Cuomo elevated them both to the Appellate Division in February 2016, after they both served as trial court judges (Judge Braithwaite Nelson in Civil Court of the City of New York and then Supreme Court, and Judge Troutman in City Court, then County Court, and then Supreme Court), which is very similar to the career path that Judge Feinman followed to the Court of Appeals. Neither Judge has made the Commission’s nomination list before, but as black women judges of distinction on the Appellate Division, I would expect them to be fixtures on the list for each upcoming vacancy in the Court.

Hon. Ellen Biben (The Dark Horse)

Court of Claims Judge Ellen Biben is also a newcomer to the Commission’s nomination list, but certainly has the administrative credentials and political connections to be the choice. Judge Biben is currently the Administrative Judge of New York County, Criminal Term, overseeing the court’s vast criminal docket, which may be attractive given the Court of Appeals’ current criminal appeal-heavy caseload. And what makes her selection interesting is that she previously worked for Governor Cuomo when he was the Attorney General as a special deputy AG in the Public Integrity Bureau. When Cuomo then became Governor, he appointed Judge Biben to be the Inspector General for New York and, after that, to be the executive director of the newly formed New York State Joint Commission on Public Ethics. She certainly has earned the Governor’s trust.

Hon. Madeline Singas (The Career Prosecutor)

Hon. Madeline Singas is the Nassau County District Attorney and has been a prosecutor for her entire 27-year legal career. After graduating from Columbia University and Fordham Law, she started out as an ADA in Queens, and then joined the Nassau County DA as the chief of the newly created Special Victims Unit in 2006. After serving in various other roles in the DA’s office, she was elected as the DA in 2015 and was re-elected in 2019. In 2018, Governor Cuomo appointed Singas 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.

Under the Judiciary Law, Governor Cuomo can’t make his pick until April 23rd, but must do so by May 8th. I’m going to guess it will be Caitlin Halligan, but of these exemplary women, there really isn’t a wrong way to go.

New York Court of Appeals Associate Judge Paul Feinman Passes Away

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.

Associate Judge Paul Feinman Announces Immediate Retirement From the Court of Appeals. What Happens Now?

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.

Court of Appeals Returns to In-Person Arguments for the March 2021 Session

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.

The Fourth Department Reinstates Governor Cuomo’s COVID Restaurant Curfew, and Gives a Lesson on How to Vacate an Order Granted Without Notice Under CPLR 5704(a)

In Gallivan v Cuomo, the Fourth Department gave pandemic litigation watchers and appellate lawyers like me a little bit of everything. It was interesting when Supreme Court issued a temporary restraining order against enforcement of Governor Cuomo’s executive order requiring restaurants across the State to close at 10 PM to slow the spread of COVID-19. It was intriguing when the Fourth Department temporarily stayed that TRO last week. And it’s downright fascinating now that the Court has issued a 19-page decision vacating the TRO in its entirety.

First let’s set the stage. As the coronavirus pandemic reached New York in March 2020, the New York Legislature expanded the Governor’s powers to issue directives designed to slow the spread of the virus, and provided that the expanded powers would sunset on April 30, 2021. Using that expanded authority, in Executive Order 202.74 issued in November 2020, Governor Cuomo imposed a 10 PM curfew on restaurants because “patrons who stay out later than 10:00 PM tend to consume more alcohol and that, in turn, makes such patrons less likely to adhere to the stringent personal conduct (such as masking and social distancing) necessary to safely congregate with others.” (Decision, at 5).

The Challenge to the Restaurant Curfew, the TRO, and the Fourth Department’s Vacatur

A coalition of restaurant owners in Erie and Monroe Counties challenged the 10 PM curfew executive order, arguing that the Legislature’s expansion of the Governor’s emergency powers under Executive Law 29-a was an unconstitutional delegation of legislative authority, and that the 10 PM curfew itself was arbitrary, violated the statute, and violated the restauranteurs’ equal protection rights. They sought a temporary restraining order from Supreme Court by order to show cause, giving the State notice that they would be presenting the proposed order including the temporary relief and an opportunity to be present to oppose it. After hearing arguments from both sides, Supreme Court signed the order to show cause with the TRO and directed that it be served on the State.

The State then moved immediately in the Fourth Department under CPLR 5704 (a) to vacate the TRO, and sought a temporary stay while its motion was being decided. The Fourth Department granted the temporary stay, and after full briefing of the State’s motion, vacated the TRO. The Court held that the plaintiffs were not likely to succeed on their claims, and thus could not satisfy their burden for a TRO. In particular, the Court held that the powers temporarily granted to the Governor to address the pandemic were not an unconstitutional delegation of legislative authority because it provided sufficient limits on the emergency powers. The executive orders must be necessarily designed to cope with the pandemic and reasonably necessary to enforce the directives. They are limited to 30-day durations, and are subject to a “unique legislative-veto procedure” where the Legislature can immediately terminate any executive order by issuing a concurrent resolution (Decision, at 14). And most importantly, the Court noted, the expanded emergency powers will sunset on April 30, 2021 absent further legislative action. As the Court put it,

There might come a day when, for reasons of short-term political expediency, the Legislature effectively amends the Constitutional tripartite plan by enacting a statute that comprehensively and permanently cedes its core lawmaking powers to the executive branch. In that event, of course, the judiciary would be duty-bound to intervene and restore the constitutional order. But this, most assuredly, is not that day, and the March 2020 amendment to Executive Law § 29-a is, just as assuredly, not that statute.

(Decision, at 15-16)

The remainder of the plaintiffs’ claims were moot, the Court held, because Executive Order 202.94, issued after the TRO was granted, changed the curfew to 11 PM. Because the plaintiffs’ claims were based solely on the 10 PM curfew, the Court held that, although the claims could be amended at Supreme Court to challenge the new restrictions, the current versions of the claims no longer presented a live controversy to decide. And so, the TRO was vacated, and the 11 PM curfew remains in effect.

A TRO is an Order Granted Without Notice Under CPLR 5704 (a)

Beyond the Court’s decision on the merits of the plaintiffs’ claims, the case is noteworthy for two other reasons. First, written motion decisions at the Appellate Division that include the Court’s reasoning are rare. Usually, the courts issue one or two line motion decisions only stating what relief is being granted or denied, without any reasoning for the decision at all. Second, this 19-page decision from the Fourth Department is very helpful to understand what is permitted under CPLR 5704 (a), a little understood area of appellate practice in New York.

CPLR 5704 (a) provides an avenue for quick relief at the Appellate Division when a TRO or other order is entered without notice against your client at Supreme Court. It provides, “[t]he appellate division or a justice thereof may vacate or modify any order granted without notice to the adverse party by any court or a judge thereof from which an appeal would lie to such appellate division.” What’s most often misunderstood, however, is what exactly is an “order granted without notice.” A temporary restraining order is rarely entered without notice to the other side and the parties all arguing before the Supreme Court. How is that not sufficient notice? In Gallivan, the Fourth Department (technically, a single Justice of the Fourth Department) explained.

When the State moved at the Appellate Division to vacate the TRO against enforcement of the curfew, the Plaintiffs argued that CPLR 5704 (a) didn’t apply because the State was given notice of the order to show cause seeking the TRO before the Judge signed it, and appeared to argue in opposition. But that’s a mistaken view of what “without notice” under CPLR 5704 actually references, Justice NeMoyer held. “Notice” is a technical legal term under the CPLR, and relates to how motions are made under CPLR article 22. Justice NeMoyer explained, the condition precedent to a CPLR 5704 (a) motion—an “order granted without notice”—only exists when a “written judicial determination” is issued “‘not predicated upon a motion made on notice'” (Decision, at 8, quoting Matter of Gliklad v Deripaska, 185 AD3d 512, 512 [1st Dept 2020]).

When an order to show cause is presented to bring on a motion, the motion isn’t actually made “on notice” until the order is signed and the signed order is served with the listed supporting papers on the other side. And when that order to show cause contains a TRO, it is necessarily granted “without notice” within the meaning of CPLR 5704 (a) because there was no motion on notice made before the order to show cause was signed. So, even if you’re given notice of a temporary restraining order application, as required under section 202.7(f) of the Uniform Trial Court Rules, and show up to argue that the Judge should strike out the TRO from the order to show cause before signing it, the entry of the TRO is still technically “without notice” and you can run immediately to the Appellate Division to have the TRO vacated under CPLR 5704 (a). Can’t say I haven’t had to do that once or twice.

Justice NeMoyer’s decision in Gallivan is a prime example for why more New York appellate courts should use their motion orders to explain interesting and complex jurisdictional and other issues that arise largely only in the context of appellate motions. The explanations could be short and to the point, but New York appellate practice would be better for it.

Court of Appeals Leave Grants: September Session Through December Decision Days

For the first half of the New York Court of Appeals 2020-21 argument term, the Court granted leave to appeal in 11 cases. Unlike most years, however, this time the majority came from the upstate Appellate Division departments: 4 came from the First Department, only 1 from the Second Department, 3 from the Third Department, and 3 from the Fourth Department. In most recent years, the vast majority of leave grants have come from the First and Second Departments, with the Third and Fourth Departments lagging far behind. That will be something to watch as the Court considers leave motions in the second half of the term.

Here’s a quick look at the recent cases headed to the Court of Appeals:

September Session

Ace Securities Corp. v DB Structured Prods., Inc., 177 AD3d 493 (1st Dept 2019)

Issue presented: Is the trustee of a residential mortgage-backed securities trust is a “plaintiff” within the meaning of CPLR 205(a) when the prior action was commenced by the trust’s certificate holders?

Holding below: Supreme Court, New York County, granted defendant’s motion to dismiss the complaint, with prejudice, holding that the trustee of a residential mortgage-backed securities trust was not a “plaintiff” for purposes of the 6-month extension of time to commence a new action under CPLR 205(a) where the initial action was commenced by the trust’s certificate holders. The Appellate Division, First Department affirmed based on its prior holding in U.S. Bank N.A. v DLJ Mtge. Capital, Inc. (141 AD3d 431 [1st Dept 2016], affd 33 NY3d 84 [2019]).

Matter of Callen v New York City Loft Bd., 181 AD3d 39 (1st Dept 2020)

Issue presented: Does the New York City Loft Board have the authority to deny a tenant’s request to withdraw an application for the legal conversion of a loft from commercial use to residential use pursuant to the Loft Law (see Multiple Dwelling Law 7-C)?

Holding below: Supreme Court, New York County, granted the tenants’ petitions to annul New York City Loft Board’s determination, which had rejected a proposed settlement agreement between the building owner and residential tenants and remanded the matter for administrative resolution of the tenants’ application for Loft Law coverage. The Appellate Division, First Department modified, holding that the tenants had the right to withdraw their applications for conversion, but once they did, the Loft Board lacked authority to approve or enforce the settlement agreement.

Matter of Mental Hygiene Legal Serv. v Delaney, 176 AD3d 24 (3d Dept 2019)

Issue presented: Is mandamus available to challenge the placement of a developmentally disabled child in hospital emergency room while the child waited for a residential placement? Does the Medicaid Act’s requirement that medical assistance “shall be furnished with reasonable promptness to all eligible individuals” (42 USC § 1396a [a] [8]) give rise to a private right of action? Did the respondent’s failure to provide the child with certain services violate the Americans with Disabilities Act?

Holding below: Supreme Court, Clinton County, dismissed the petitioner’s application to, among other things, challenge the placement of the subject child at the respondent hospital and the services provided by the Office for People with Developmental Disabilities and the Department of Health. The Appellate Division, Third Department affirmed.

Matter of Endara-Caicedo v New York State Dept. of Motor Vehs., 180 AD3d 499 (1st Dept 2020)

Issue presented: Can the refusal of a motorist arrested for operating a motor vehicle while under the influence of alcohol or drugs to submit to a chemical test be used against the motorist in administrative license revocation hearings, even if the chemical test is offered, and the refusal occurs, more than two hours after the motorist’s arrest?

Holding below: Supreme Court, Bronx County, denied the petition to annul the DMV’s determination, which, after a hearing, revoked the petitioner’s license to drive for at least one year and imposed a $500 civil penalty. The Appellate Division, First Department affirmed.

Moore Charitable Found. v PJT Partners, Inc., 178 AD3d 433 (1st Dept 2019)

Issue presented: Does the complaint states a cause of action for negligent supervision?

Holding below: Supreme Court, New York County, granted the corporate defendants’ motion to dismiss the causes of action for fraud based on respondent superior and negligence, and denied the motion as to the cause of action for fraud based on apparent authority, and denied the plaintiff’s request to amend the complaint. The Appellate Division, First Department modified to dismiss the cause of action for fraud based on apparent authority, and otherwise affirmed.

Matter of Miller v Annucci, Appellate Division, Third Department order of Nov. 7, 2019

Issue presented: Did the Appellate Division properly dismissed the appeal as untimely?

Holding below: Supreme Court, Albany County, dismissed the complaint/petition. The Appellate Division, Third Department dismissed the appeal as untimely taken.

October Session

Matter of Johnson v City of New York, 180 AD3d 1134 (3d Dept 2020)

Issue presented: Must an award of workers’ compensation benefits for a schedule of loss of use (SLU) attributable to an injury to one part of a qualifying limb be offset by a prior award for an injury involving a different part of the same qualifying limb?

Holding below: The Workers’ Compensation Board, among other things, ruled that the claimant sustained a 30% schedule loss of use of his left leg and a 0% schedule loss of use of his right leg as a result of a February 2006 accident. The Appellate Division, Third Department affirmed.

Konkur v Utica Academy of Science Charter Sch., 181 AD3d 1271 (4th Dept 2020)

Issue presented: Does Labor Law § 198-b, which prohibits wage kick-backs, provides for a private right of action?

Holding below: After Supreme Court, Oneida County, among other things, denied in part High Way Education, Inc.’s motion to dismiss the complaint against it, the Appellate Division, Fourth Department reversed and dismissed the complaint against High Way Education, Inc. in its entirety because “the legislature did not intend to create a private right of action for violations of Labor Law § 198-b.”

November Session

Hunters for Deer, Inc. v Town of Smithtown, 186 AD3d 682 (2d Dept 2020)

Issue presented: Does Environmental Conservation Law § 11-0931(4)(a)(2), which provides for minimum setback limits for the discharge of a bow and arrow, preempt local municipal codes regulating the same issue?

Holding below: Supreme Court, Suffolk County, denied that branch of the plaintiffs’ motion which sought summary judgment declaring that chapter 160 of the Code of the Town of Smithtown is invalid as applied to the discharge setback of a bow and arrow, and granted that branch of the defendant’s cross motion which was for summary judgment dismissing that part of the complaint. The Appellate Division, Second Department reversed, holding that the local code was preempted, and remitted the matter to Supreme Court for the entry of a judgment declaring that chapter 160 of the Code of the Town of Smithtown is invalid as applied to the discharge setback of a bow and arrow.

Schoch v Lake Champlain OB-GYN, P.C., 184 AD3d 338 (3d Dept 2020)

Issue presented: Was the defendant employer was entitled to receive cash consideration resulting from the demutualization of an insurance fund where the employer purchased the insurance policy and paid all the premiums but where the employee is named as the sole insured on the policy, and is the employee unjustly enriched by the receipt of the cash consideration?

Supreme Court, Saratoga County, issued a declaration in the employer’s favor. The Appellate Division, Third Department reversed, denied the employer’s cross motion for summary judgment, granted the employee’s motion for summary judgment, and declared that the employee is solely entitled to the $74,747.03 cash consideration from Medical Liability Mutual Insurance Company’s demutualization, plus interest for the time the proceeds were in escrow, because the employee was the named insured on the policy.

Bonczar v American Multi-Cinema, Inc., 185 AD3d 1423 (4th Dept 2020), bringing up for review 158 AD3d 1114 (4th Dept 2018)

Issue presented: Is a worker who fails to check the position of a ladder or its locking mechanism before climbing it to perform elevated work the sole proximate cause of his injuries under Labor Law § 240 (1)?

Holding below: After Supreme Court granted the worker partial summary judgment on liability for his Labor Law § 240 (1) claim, the Appellate Division, Fourth Department, with two Justices dissenting, reversed and denied partial summary judgment, holding that the worker did not satisfy his initial burden because he “did not know why the ladder wobbled or shifted, and he acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so.” Following a trial verdict in the defendant’s favor, the Fourth Department affirmed the judgment of dismissal.

December Decision Days

Matter of Kotsones, 185 AD3d 1473 (4th Dept July 17, 2020)

Issue presented: Does a beneficiary’s position of trust with a decedent require an inference of undue influence in disposition of assets in a will?

Holding below: Supreme Court denied the application to admit to probate the December 5, 2012 will of the deceased and invalidated various transactions. The Appellate Division, Fourth Department reversed, granted the application to admit the will to probate, and held that a mere position of trust with the decedent was not enough to trigger an inference of undue influence.

New York Court of Appeals’ Year in Review, COVID-19 Edition

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.

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