Governor Andrew Cuomo Nominates Madeline Singas and Hon. Anthony Cannataro to the Court of Appeals

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

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

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

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

What Does This Mean for the Court of Appeals?

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

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

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

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

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

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

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

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

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

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

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

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

On to Senate Confirmation

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

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

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.

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.

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.

Associate Judge Leslie Stein Announces Her Retirement Effective June 4, 2021

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.

Court System Budget Cuts Force Appellate Division Justices Off the Bench

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.”

New York Daily Fantasy Sports Suit: Will New Legislation Moot the Constitutional Challenge to DFS?

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.

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