The New York Constitution Can Help Fix the Backlog of Appeals in the Appellate Division, Second Department

Everyone admits that the backlog of pending appeals in the Appellate Division, Second Department is a problem. As Presiding Justice Alan Scheinkman acknowledged in an op-ed in the NY Law Journal last fall, “it can take as long as 18 months for a civil appeal to obtain a place on the court’s day calendar and then more time for a decision to be rendered.” That’s 18 months after an appeal is fully briefed. And to get that far in the first place it could take up to a year from when the notice of appeal is served. So, in reality, the Second Department is often looking at appeals that are pending for almost three years before they are decided.

Recognizing this huge issue, Presiding Justice Alan Scheinkman of the Second Department announced a number of procedural reforms in September 2018 that were designed to decrease the Court’s backlog of appeals. First, the Court increased its oral argument calendars from 20 to 24 cases per day. That’s a good first start. Judge Scheinkman also noted that the Court would use specialized benches for an additional sitting in some long delayed matrimonial, Commercial Division, and land use and zoning appeals.

Third, Judge Scheinkman announced that he was reemphasizing the Court’s requirement of mandatory mediation for pre-perfected appeals through the Court’s Civil Appeals Management (CAMP) program. Judge Scheinkman’s hope is that early mediation will help new appeals, and long delayed ones, settle, which would help reduce the Court’s backlog. Finally, Judge Scheinkman also forecasted that the Second Department would be much less receptive to extensions than it had been in the past. Under the new Appellate Division Uniform Rules, parties can obtain two 30-day extension for their principal briefs by stipulation or letter agreement, but any further extension requires a formal motion “upon a showing of good cause.” The Court will not show much empathy for claims of a heavy workload or a pending reargument motion in the trial court. As Judge Scheinkman put it,

Extension motions should be confined, as the rule says, to limited circumstances where good cause exists, such as where an unexpected health issue or other unforeseeable event has occurred.

In addition to Presiding Justice Scheinkman’s reforms, a proposal was introduced in the Legislature last year to split the Second Department into two separate courts—a North division covering appeals from Dutchess, Orange, Putnam, Rockland, and Westchester counties and a South division covering appeals from Brooklyn, Queens, Nassau, and Suffolk counties.

That’s an interesting proposal, but there are two catches. First, the bill received little support last year and died in the Judiciary Committee of the NY Assembly, the only house in which the bill was introduced. Second, splitting the Second Department requires a constitutional amendment. The NY Constitution expressly provides that there shall be 4 departments of the Appellate Division, and specifies their boundaries.

And the constitutional amendment process is a long and troublesome one. The proposed amendment first has to pass in two successive legislatures, and then be approved by the people of this State at a general election. Normal people, however, aren’t generally thinking about how to fix the backlog of appeals in the Second Department and whether splitting it in two makes sense for the judiciary. So, finding the necessary support for a constitutional amendment may prove difficult.

But the Second Department doesn’t need the rigmarole of a constitutional amendment to fix its backlog of appeals. The New York Constitution already provides two solutions that I noticed. First, section 4(a) of the Judiciary article of the NY Constitution grants the Legislature the right to change the boundaries of the Appellate Division departments every ten years as long as it doesn’t change the total number of departments. Here’s how they’re currently divided:

The Second Department covers the 2nd, 9th, 10th, 11th, and 13th Judicial Districts, while the First Department covers the 1st and 12th, the Third Department covers the 3rd, 4th, and 6th, and the Fourth Department covers the rest.

So, how can the Legislature change the boundaries of the Second Department to reduce its backlog of appeals? Well, it’s all just moving pieces to a puzzle. The 9th Judicial District could become part of the Third Department. Or maybe just move Putnam, Dutchess, and Orange counties into the 3rd Judicial District, which would take them from the Second Department into the Third. Or to get all crazy with it, move Onondaga County into the 6th Judicial District, trade the 5th Judicial District from the Third Department to the Fourth in exchange for the 6th Judicial District, make the 9th Judicial District part of the Third Department, and send the 2nd Judicial District to the First Department. Oh, plus a player to be named later and cash considerations. The possibilities are endless. I’m fairly certain that it’s been more than ten years since the Legislature changed the boundaries of the Appellate Division, so this option is on the table.

If that’s too confusing for you, there’s a second way. Tucked away in the judiciary article is a never-mentioned provision giving the four Appellate Division Presiding Justices the right to call a meeting when one of the Departments is unable to complete its work within a reasonable time and transfer appeals to the other Departments. Who knew? Particularly, Article VI, section 4(g) of the Constitution provides:

So here, because the Second Department has been unable to decide all of its appeals within any reasonable period of time, it could be time for the four Appellate Division Presiding Justices to call a meeting of the families and transfer a bunch of Second Department appeals upstate. The Third and Fourth Departments decide fewer appeals after oral argument each year than the Second (1,579 in the Third Department and 1,444 in the Fourth Department compared to 3,815 in the Second Department in 2017).

Sure, this option would tax the Third and Fourth Department Justices with more work, but overall it should reduce the time that it takes to have appeals decided throughout the State. A little increase in the times from notice of appeal to decision in the Third and Fourth Departments should be more than offset by the significant reduction in the Second Department. And the caseload would be spread out across the four Appellate Division departments more equitably.

There are solutions to fix the huge backlog of undecided appeals in the Second Department. The courts just need to know where to look. Although Presiding Justice Scheinkman’s efforts are certainly laudable, and may well help reduce the problem to an extent, I think the time has come for more drastic action than adding 4 more cases to the daily argument calendar can provide. The time is here to look to our Constitution and use the powers that the Legislature and Judiciary have been granted to change the boundaries of the Appellate Division departments or transfer Second Department appeals to other departments. Indeed, three years for an appeal is just too long for any party to have to wait.

Bring Your Lunch to the Court of Appeals: A Conversation with Judge Leslie Stein

It’s not often that you get the chance to have lunch with a sitting judge of your state’s high court, much less in a group of just four other people. Lucky for me, that’s the kind of quality programming that the Albany County Bar Association provides. Last time, it was lunch with Justice Michael Lynch of the Appellate Division, Third Department. This time, the ACBA’s Brown Bag Lunch program brought me to the Court of Appeals for lunch with Associate Judge Leslie Stein. As always, it was a fantastic program. Here are just a few highlights of what we talked about.

Differences Between the Trial Bench, the Appellate Division, and the Court of Appeals

Judge Stein’s career on the bench has run the gamut. She began in the Civil Part of City Court, was then elected to Supreme Court, elevated to the Appellate Division shortly after that, and was appointed to the Court of Appeals three years ago. So what’s the biggest differences between her stops?

Besides the general complexity of the cases before her, which of course increased as she rose to the Appellate Division and now on the Court of Appeals, Judge Stein explained that the biggest difference between sitting in City Court and the Appellate Division and the Court of Appeals is learning how to make a collaborative decision on the cases you hear. While at City Court or Supreme Court, Judge Stein was the sole person responsible for the decisions in the cases she heard. She got to review the law, the facts, and decide the outcome that she thought was right every time.

Once she was elevated to the Appellate Division and especially now on the Court of Appeals, the decision-making process became much more collaborative. After oral argument, Judge Stein explained that all the judges on the case sit down at conference to discuss the issues and a possible result. In that discussion, the Judges have to convince each other of the right outcome, and no one Judge’s perspective can control.  You need at least 3 votes at the Appellate Division and 4 at the Court of Appeals to issue a decision, after all. There is much more give and take, and compromise about what the Judges are willing to agree to. That process, Judge Stein said, often leads to much narrower opinions on the relevant issues to get the agreement that the Court needs to decide a case.

The Use of Oral Argument Questions and Separate Opinions to Develop the Law

But when the Judges can’t all agree on a particular issue, Judge Stein said that questions at oral argument and writing separate opinions are often useful to help push the Court to reach agreement. In fact, oftentimes, the Judges go into oral argument with a few questions that are designed more to persuade their colleagues on an issue than they are to elicit a response from the advocates. And the Judges each have a good sense of which questions are which. The Judges have their own unique styles of questioning, Judge Stein told us, and when the questions are being used to persuade their colleagues on the Court, it’s pretty easy to see.

Judge Stein offered some important advice for advocates who argue before the Court. The Judges all know that you’re wrapped up in the particular facts and issues in your client’s case, but you have to be ready to answer the bigger question: “What rule would you have this Court adopt?” The Court wants to know where the line should be drawn not only for the particular case in front of it, but for all cases throughout the State. It’s sometimes surprising, she said, that attorneys come to argument unready to answer that question. Don’t let that be you (especially because if you’ve watched the Court’s arguments, the question about what the rule is comes up in almost every single one).

Judge Stein also told us that separate opinions can have the same persuasive purpose. About one week before the start of the argument session, each Judge is assigned to write an opinion on a case that will be argued at that term (this is a change from the Court’s prior practice where the Judges randomly were assigned writings at the conference immediately after oral argument concluded).  Thus, Judge Stein explained, when the Judges leave the bench after oral argument at the Court of Appeals, they know which cases they’ll be writing an opinion in, but not necessary whether that opinion will be for the majority or the dissent. After argument, the Judges head to conference, discuss the issues in each case, with the least senior Judge (now, Judge Feinman) beginning, and hold an initial vote on the case. If the Judge that has been assigned the writing has the majority, then he or she will write the majority opinion, and the dissent is assigned to the next least senior Judge who disagrees.

Many times, however, Judge Stein explained, the Judges who are writing the dissent write opinions that never leave the internal chambers of the Court. They are offered to persuade the majority to narrow its opinion as a part of the give and take process. The draft dissenting opinions are used for points of discussion among the Judges to see if they can reach a compromise on the issues. Many times, it works, the Judges agree to sign on to the majority, and the draft dissent is scrapped, having served its purpose.

But when it doesn’t, the dissent becomes part of the Court’s opinion, offering the bench and bar a different critique of the issues in the case. Judge Stein told us that dissents can also be valuable to signal when a Judge feels that the law should be changed, as Judge Rivera recently did in calling for a reexamination of the excited utterance exception to the hearsay rule in People v Cummings or Judge Wilson did in calling for the Court to interpret its jurisdiction to include the ability to dismiss an appeal as improvidently granted.

Concurring opinions can be used the same way, Judge Stein noted. When a Judge agrees in principle with the Court’s proposed result, but would use different reasoning to get there, he or she will use a concurrence to explain the difference. Or, as Judge Fahey did recently, to explain that the issues in the case are important and should be decided, but that this particular case is not the right one in which to reach them, and to signal to the bar to bring these issues to the Court in another case.  Much of what the Court does, Judge Stein said, is about the development of the law, and not necessarily just for the case in front of it.

The Process of Hiring Clerks

No discussion of the inner workings of the Court of Appeals would be complete without touching on the subject of those attorneys who help the Judges do their jobs. All of the Judges on the Court have different policies on who they will hire for clerks, what kinds of experience they’re looking for, whether they want permanent or rotating clerks, and whether they’re willing to hire clerks straight out of law school.

Although some Judges on the Court have exclusively rotating clerks for 2-year terms in order to get a fresh perspective in chambers, Judge Stein has traditionally had permanent law clerks, people she has grown to know well and who know her intellectual tendencies. That, she thinks, has worked very well for her over the years. But, just recently, Judge Stein hired a new clerk on a 2-year term commitment. So, she’s willing to reevaluate her stance and her new clerk, she said, is working out very well.

When we asked what she looks for in a potential clerk, she said that it’s important for the applicant to have at least 2-3 years of experience representing clients of some sort. That perspective is important to sort through the arguments that the attorneys in each case bring to the Court. The practical experience helps Judge Stein sort through the practical impact of the cases that the Court is deciding, which is always a consideration when the Court decides cases that affect the law statewide.

Judge Stein also looks for strong writers, of course, but importantly also someone who is willing to stand up to her and tell her when the clerk thinks she is wrong on the law. It’s ultimately the Judge’s call where her opinion comes out in a case, but the process of reaching that decision is strengthened when the clerks provide a strong point of view and don’t just agree with Judge Stein’s initial reaction.

Best of all, as we finished up lunch with Judge Stein, she offered to take us on a private tour of the Court, to see the detailed hand-carved woodworking throughout the courtroom, sit in the Judges’ chairs and look at the still existing spittoon underneath the bench, tour the robing room where the Judges get ready for argument before they enter the courtroom, see the two-story conference room and the “Cardozo” room where the decisions get made, and last but certainly not least, the Judges’ chambers on the second floor.

Not bad for a brown bag lunch. Not bad at all.  It was, in fact, as fantastic program, and many thanks are owed to the Albany County Bar Association for continuing to put this great programming on for its members and to Judge Stein for taking the time out of her busy schedule between sessions to host us.




Are Women Getting a Better Chance to Argue in State Appellate Courts? Like in Most of the Law, the Answer is “It Depends”

There has been a wealth of information recently on just how few women are getting opportunities to argue before the Supreme Court. Inspired by the fantastic piece done by Adam Feldman of Empirical SCOTUS (and @AdamSFeldman on Twitter) that looked at the dearth of women getting chances to argue before the nation’s highest court during the last 5 years (if you haven’t read Adam’s work, please take a minute and do that.  It’s fascinating stuff!), and Raffi Melkonian’s (@RMFifthCircuit on Twitter) look at oral arguments in the Fifth Circuit (the thread starts here), I started to wonder if the state appellate courts are a female-friendlier venue for high court appellate arguments.

Riding the coattails of the impressive work done by Adam and Raffi, I looked at how many arguments were done by women attorneys in the New York Court of Appeals during 2016. According to Adam’s piece, “if we look at all attorneys that have argued before the [Supreme] Court between the 2012 and 2016 Supreme Court terms (a total of 864 attorney arguments), females make up between 17% and 18% of the attorneys.”  For the Fifth Circuit in 2016, Raffi’s calculation also came out to about 17%.

Women argued in the New York Court of Appeals, on the other hand, approximately 37% of the time (136 arguments by women attorneys out of 372 opportunities).  That’s a significantly better rate than in the federal Courts of Appeals (assuming the Fifth Circuit is a good example) and in the Supreme Court. Of the cases that were argued before the Court of Appeals in 2016, there were 31 cases in which two women attorneys argued compared to 74 cases in which two men faced off.

Although the overall opportunities for women to argue in the Court of Appeals seem better than is seen in the Supreme Court and the Fifth Circuit, the total argument data masks a large divide in criminal and civil argument opportunities. When the arguments are broken down by case type, there was a much greater chance that women attorneys would argue criminal cases than civil cases.

In 2016, there were 188 attorneys who argued before the Court of Appeals in criminal cases.  89 of those attorneys were women.  That’s 47%.  The number of criminal cases in which both advocates were women was also largely equal to the number where both were men, 24 to 26.

For civil cases, however, the rate was much more similar to the rates seen in the federal appellate courts. The Court of Appeals heard arguments from 184 attorneys in civil cases in 2016, only 47 of which were women.  That’s 26%. Slightly higher than the Fifth Circuit and Supreme Court, but not significantly so.  The disparity in civil cases argued by all women versus argued by all men is even more stark.  While there were 48 cases with all-male arguments, the Court of Appeals heard only 7 cases in which the attorneys at the podium were all female.

Although this is just one year of data (and I may have to go back a few more years to see if these trends hold over time), the argument data suggests that women attorneys are getting better opportunities for appellate arguments in public interest avenues, like The Legal Aid Society, Appellate Advocates, or District Attorney’s Offices, than they are in typical private law firms.  Given the well-publicized difficulties in women advancement in law firms, the dearth of women arguing in civil cases is not surprising. But that’s certainly no excuse for the problem.

While it’s great to see the state high court appellate argument opportunities even out in criminal cases, much work still needs to be done on the civil side.  As Raffi said (and I can’t put it any better), “just a thought for those of us who assign cases, and for clients who decide who they want to argue[, g]ive someone else a shot.”

A Conversation with Judge Michael Lynch of the Appellate Division, Third Department

If you’re invited to a brown bag lunch with a judge, be sure to bring a lunch. That was the mistake I made this week at the Albany County Bar Association’s first quarterly brown bag lunch event with local judges. (In my defense, I ran out of time to grab lunch and wanted to make sure I was at least on time. I’d rather be hungry than late to a meeting with a judge.)

The brown bag lunch program is the County Bar Association’s latest effort to provide its members with more opportunities to sit down for informal discussions with the members of the local bench. First up on the schedule was the Appellate Division, Third Department’s Michael Lynch, a distinguished jurist who served on the trial bench for 9 years before being elevated to the Third Department in 2014. I’ve appeared before Judge Lynch on a number of occasions, both while he was sitting at Supreme Court and now on the Third Department. He has always been very contemplative and easily able to distill complex cases to pinpoint the issues on which the case will turn. But what was so easy to see while sitting at the lunch table with him, his wife, his son, and about 15 other local attorneys was how welcoming he is and how much he enjoys engaging with the bar.

Our conversation, which was a great question and answer session with the Judge, touched on a number of topics, including the value of oral argument, the Judge’s own experience in appellate arguments, and a judge’s role in settlement talks, among many other things. Here’s a brief recap of what Judge Lynch had to say.

The Value of Oral Argument

Judge Lynch noted that he and the rest of his colleagues at the Third Department have noticed more and more attorneys waiving oral argument on their appeals and submitting the cases on the briefs. That is a big mistake, Judge Lynch cautioned. Don’t waive oral argument, ever. The arguments, the Judge noted, aren’t just for you to plead your case to the Court. They are a valuable opportunity for the Judges to clarify issues they are having with the cases with the attorneys who know the cases best. Without oral argument, that valuable opportunity is missed, and the Court is left to sort out the issues on its own.

For as much as it is said that oral argument has little impact on how cases are actually decided, Judge Lynch certainly indicated that it still plays a big role for him. And I actually think that’s generally true. Oral argument is your chance to have a conversation with the Judges and either bring them comfort that what the trial court did was right or show them how it was wrong. It’s at oral argument where you can get a sense of the issues that are troubling the Judges, and use your time to show how the case should come out in your client’s favor. That’s a valuable opportunity. Don’t give it up.

It’s OK to Admit You Don’t Know

Judge Lynch also made a point to tell us that if you don’t know the answer to a question during oral argument, it’s OK to admit when you don’t know the answer. As an example, Judge Lynch told a story when he inherited a Voting Rights Act case while he was the Albany County Attorney and was arguing a Rooker-Feldman issue in the Second Circuit. The first question from the panel was whether then-County Attorney Lynch was aware of a case that had been argued (not decided) earlier that week in the Supreme Court on the Rooker-Feldman doctrine. Honestly, he said, he had never heard of it, so he admitted to the panel that he wasn’t. It happens to everyone, he said, and the arguments go on, so you can’t let it throw you off.

Judge Lynch also told us that while it’s important to have a command of your record, the Court doesn’t expect you to know exact pages where things are located, except for possibly the crucial piece of evidence or issue in the case. But when you show the Court you have a command of the record, it is impressive, Judge Lynch said.

A Judge’s Role in Facilitating Settlements

Judges have a lot of different styles when it comes to settling cases. Some are more pushy than others, and Judge Lynch said that he viewed his role, when he was a trial judge, as helping to facilitate the settlement, but allowing the parties to go to trial even in cases that should have settled beforehand. For example, Judge Lynch had a trial where the parties were only $2,000 apart on the morning of the trial. Likely because of attorney animosity, the parties wouldn’t budge. So, instead of holding them hostage in chambers and forcing the parties to make up the difference, Judge Lynch let them go out, pick a jury, and present the plaintiff’s case. Afterwards, the plaintiff came back and accepted the defendant’s lower offer to settle. Every party has the right to go to trial, Judge Lynch said, and he didn’t think it was his role to force a settlement before trial.

Overall, it was a fantastic event put on by the Albany County Bar Association. Many thanks to the ACBA and especially to Judge Lynch for taking the time out to have lunch with us and share his many valuable insights. Next time, I promise I’ll leave enough time to grab my lunch.

The Trailblazing Women Judges of the Court of Appeals

If you haven’t followed the hashtags #WomenJusticeWeek and #WomenJusticeDay on Twitter, you really should. For this past week, Jack Metzler (@SCOTUSPlaces) and the other #AppellateTwitter denizens have been paying tribute to the distinguished women Justices of the Supreme Court and the approximately 125 women Justices of the State high courts.

Included in that celebration are the three current women Judges of the Court of Appeals: Chief Judge Janet DiFiore, Associate Judge Jenny Rivera, and Associate Judge Leslie Stein, which were well covered by Naveen Kabir (@NaveenKabirEsq) in this thread:

The history of women on the Court of Appeals, however, began well before the three distinguished women Judges now on the Court. In fact, Judges DiFiore, Rivera, and Stein are actually the 5th (Rivera), 7th (Stein), and 8th women (DiFiore) Judges on the Court.

Blazing the trail before them were the still unmatched Judith Kaye, who was appointed as the first woman Associate Judge of the Court of Appeals in 1983 and then elevated as the first woman Chief Judge in 1993, Carmen Beauchamp Ciparick, Victoria Graffeo, Susan Phillips Read, and Shelia Abdus-Salaam. Each has made her mark on the Court and New York law, and deserve to be included in the celebration.

Chief Judge Judith Kaye

Chief Judge Kaye is one of the most remarkable women to ever serve on the bench. She was born to Jewish Polish immigrants in Monticello, NY, and grew up on a small farm. She graduated high school at 15, yes 15, and moved on to Barnard College to pursue a journalism degree. When she wasn’t getting the opportunities she wanted in journalism, she decided to pursue the law.

Chief Judge Kaye worked as a copy editor during the day and attended NYU Law at night, two full time jobs. She graduated sixth in her class of nearly 290, only ten of which were women. After law school, Chief Judge Kaye became a respected commercial litigator in NYC, first with Sullivan & Cromwell and later as the first woman named partner at Olwine, Connelly, Chase, O’Donnell & Weyher.

After a first vacancy occurred on the Court of Appeals in 1983, no women made it on the list of 7 sent to Governor Mario Cuomo, who had made it a campaign promise to appoint a woman to the Court. For the next vacancy that same year, two women made the final list: Justice Betty Weinberg Ellerin of State Supreme Court, who was a former president of the Women’s Bar Association, and Chief Judge Kaye. The Women’s Bar Association, however, rated Chief Judge Kaye as not qualified. Governor Cuomo ignored the rating and appointed her anyway.

And did Chief Judge Kaye ever prove the Governor right. While on the Court of Appeals, Chief Judge Kaye was a distinguished jurist who was well ahead of her time in many respects. For example, Chief Judge Kaye’s dissent in Hernandez v Robles, a same sex marriage case in 2006, remains one of the most powerful opinions written by a member of the Court. As she wrote,

Chief Judge Kaye (dissenting). Plaintiffs (including petitioners) are 44 same-sex couples who wish to marry. They include a doctor, a police officer, a public school teacher, a nurse, an artist and a state legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children–from toddlers to teenagers. Many are active in their communities, serving on their local school board, for example, or their cooperative apartment building board. In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.


For most of us, leading a full life includes establishing a family. Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives. They, like plaintiffs, grew up hoping to find that one person with whom they would share their future, eager to express their mutual lifetime pledge through civil marriage. Solely because of their sexual orientation, however–that is, because of who they love–plaintiffs are denied the rights and responsibilities of civil marriage. This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.

Her cutting edge opinions also included novel issues concerning whether an agreement between a husband and wife during their marriage controls the disposition of frozen, stored pre-embryos after their divorce (see Kass v Kass, 91 NY2d 554 [1998]):

we agree that the informed consents signed by the parties unequivocally manifest their mutual intention that in the present circumstances the pre-zygotes be donated for research to the IVF program.


The conclusion that emerges most strikingly from reviewing these consents as a whole is that appellant and respondent intended that disposition of the pre-zygotes was to be their joint decision. The consents manifest that what they above all did not want was a stranger taking that decision out of their hands. Even in unforeseen circumstances, even if they were unavailable, even if they were dead, the consents jointly specified the disposition that would be made. That sentiment explicitly appears again and again throughout the lengthy documents. Words of shared understanding—“we,” “us” and “our”—permeate the pages. The overriding choice of these parties could not be plainer: “We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law ” (emphasis added).

Chief Judge Kaye’s opinions on standing and the State Environmental Quality Review Act standard of review remain the most cited precedent in those areas (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 [1991] [standing]; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 [1986] [SEQRA]).  She also heavily emphasized the unique rights granted under the New York Constitution, especially in high stakes cases like the education funding cases (seeCampaign for Fiscal Equity v State of New York, 100 NY2d 893 [2003]).

Chief Judge Kaye also went to bat for the all of the State’s Judges when she joined with other judges from across the State to sue the New York Legislature for impermissibly tying a judicial pay increase to unrelated legislative matters (see Matter of Maron v Silver, 14 NY3d 230 [2010]), and the Court of Appeals agreed with her that the “independence of the Judiciary is improperly jeopardized by the current judicial pay crisis and this constitutes a violation of the Separation of Powers Doctrine,” though it declined to adopt any remedy for the state constitutional violation (id. at 244).

What struck me most about Chief Judge Kaye was not her attempts to convince her colleagues to speak with one voice on important issues, or her administrative reforms of the New York court system that are far too many to list, but her kindness and how she treated the Court and everyone who worked there as family. Chief Judge Kaye’s last day on the Court was December 31, 2008, forced off by the New York Constitution’s mandatory retirement provision. My clerkship at the Court began just a few months earlier, but what I remember most vividly was the lengths she went to know everyone’s name and give all of us her time.  During after the first argument session in September 2008, Chief Judge Kaye stopped up to the Central Staff offices to talk about the cases that had just been argued and how she viewed her and our place at the Court.  This was a regular occurrence. And even just a few days before she left the bench, Chief Judge Kaye stopped up once again to reflect with us on her 25 years as a Judge of the Court of Appeals and what it meant to her.  She was genuine, brilliant, kind, and a jurist and administrator still unmatched at the Court.

Associate Judge Carmen Beauchamp Ciparick

Associate Judge Carmen Beauchamp Ciparick was the second woman and first Hispanic appointed to the Court of Appeals. Unlike Chief Judge Kaye’s upbringing on a small farm, Judge Ciparick’s began in Washington Heights. Her parents were two of the earliest Puerto Rican immigrants to that narrow stretch of upper Manhattan. While her father was a civil servant in the US Army Corps of Engineers, her mother stayed home to raise her and her older sister, Myrna. Every winter, they would brave the cold for the Christmas show at Radio City Music Hall and every summer, they headed for the shore to the Rockaways or New Jersey’s Point Pleasant.

After graduating from George Washington High School, Judge Ciparick attended the all-women Hunter College tuition free, where she majored in History and Political Science and developed her interest in the law. Although her parents initially opposed her decision to go to law school, they eventually came around to the idea, and Judge Ciparick signed up for night classes at St. John’s University School of Law. During the day, she worked full time as a history and physical education teacher at a junior high and at night, she went to law school. Talk about a long day.

Judge Ciparick was one of only eight women in her law school class in 1963. Women in law school were so rare, in fact, that they were often singled out by professors. In Judge Ciparick’s torts class, for example, the professor once questioned her at length on whether a lady’s evening gown was an inherently dangerous instrument. Judge Ciparick endured and graduated in 1967, and was admitted to the bar later that year.

Judge Ciparick’s early years of practice were as a Staff Attorney with The Legal Aid Society in the South Bronx, a poor, predominately Spanish-speaking area. It was the only job she wanted and applied for out of school. And she loved it. Although she was often mistaken for a secretary or an interpreter, because she grew up in a bilingual household and spoke fluent Spanish, Judge Ciparick relished representing the underserved in numerous civil matters, including landlord-tenant disputes, divorces, adoptions, personal bankruptcies, and various administrative proceedings.

Two years later, she joined the court system as Assistant Counsel to the Judicial Conference of the State of New York, the predecessor to the Office of Court Administration. By 1972, she had risen to the supervising attorney of the New York City criminal courts, overseeing a pool of 40 attorneys who were providing legal assistance to the criminal court judges. While the supervising attorney, Judge Ciparick made significant efforts to hire women and minority attorneys into the pool.

In 1978, at the young age of 36, Judge Ciparick joined the bench when NYC Mayor appointed her to the Criminal Court of the City of New York. She was the first Puerto Rican woman to serve on the bench in New York State history and one of the youngest judges in the entire State. She was elected to the Supreme Court bench four years later (but almost never made it onto the ballot when the Democratic Party missed the filing deadline, and she had to be elected on the Liberal Party line).

As a Supreme Court judge, Judge Ciparick decided hundreds, if not thousands, of cases, but one stands out in particular. The first was the trilogy of America’s Cup cases entitled Mercury Bay Boating Club Inc. v. San Diego Yacht Club. In the cases, Judge Ciparick presided over a dispute concerning whether the catamaran used by the San Diego Yacht Club to defend its sailing title in the world famous races complied with the specifications set forth in the deed of gift that governed the America’s Cup. She said that it didn’t, and disqualified the San Diego, handing the title to New Zealand. Although a divided Appellate Division reversed, the Court of Appeals dismissed the case entirely, saying it should be resolved by the sailing community, not the courts. The cases garnered Judge Ciparick international attention, as she was called a heroine by the London Times, received fan mail from New Zealand, and hate mail from California, with one sailor particularly claiming that her name would live on, “synonymous with Benedict Arnold in drag.”

In 1993, on the strength of her Supreme Court service, Governor Mario Cuomo nominated Judge Ciparick to the Court of Appeals. She was the second woman on the Court, joining Chief Judge Kaye, and the first Hispanic to serve on the State’s high court. She served with distinction for 19 years until she hit mandatory retirement in 2012.

During her time on the Court, Judge Ciparick wrote many, many important opinions, including recognizing disparate impact claims on the basis of sexual orientation under the New York City Human Rights Law (see Levin v Yeshiva University, 96 NY2d 484 [2001]), striking down the notice and review procedures of the Sex Offender Registration Act as constitutionally inadequate (see People v David W., 95 NY2d 130 [2000]), and finding that the general prohibition against gambling in the State Constitution’s Bill of Rights did not foreclose the establishment of casinos on Indian lands, the State’s lottery, installation of video lottery terminals at racetracks, or the State’s entry into a multistate lottery (see Dalton v Pataki, 5 NY3d 243 [2005]).

Associate Judge Victoria Graffeo

Associate Judge Victoria Graffeo was the third woman appointed to the Court of Appeals. She came from a proud Italian-American family that immigrated to New York in the late 1800s-early 1900s. Her grandfathers both fought for the US in World War I, and her father enlisted in World War II and fought on the shores of Normandy. From this patriotic background, Judge Graffeo’s family instilled in her a strong sense of what it meant to have freedom.

Early in her life, Judge Graffeo’s father took a job in Western Massachusetts as a surveyor building the Massachusetts Turnpike, and so they bought a small dairy farm that Judge Graffeo roamed as a child. They moved to Schenectady when her father came to help build the Northway, from Albany to the Canadian border, before they eventually settled in the Town of Guilderland, one of Albany’s suburbs.

Judge Graffeo attended SUNY Oneonta for college, after turning down a scholarship to Cornell because the private school was beyond her family’s means, and majored in political science. She student-taught high school social studies during her senior year of college, but then decided that she wanted to pursue the law. No one in her family had ever been a lawyer before, and so her parents were understandably surprised when she told them she was going to law school.

Because her family could not financially assist her legal endeavors, Judge Graffeo decided that she would attend Albany Law School while living at home and working part time to cover the cost of attendance. During her 1L year, she worked several jobs even though the Law School barred outside employment. One day, Judge Graffeo was called down to the registrar’s officer and unceremoniously lectured about devoting all of her time to the study of law. Although Judge Graffeo changed her habits to hide her outside employment better, she never did stop working throughout law school. During 2L and 3L years, she began working at a law firm that was one of the few in Albany that was even interested in hiring women. That experienced proved invaluable going forward, and Judge Graffeo became an associate at the firm with eight other male lawyers.

Only three years after she graduated from Albany Law and was admitted to the bar, Judge Graffeo found herself arguing a case before the very Court of Appeals that she would later join. In the case, she represented a contractor challenging a NYS Department of Labor prevailing wage claim, and she won.

Judge Graffeo’s early years as a lawyer, extraordinary as they were, certainly were not without mistreatment. For example, in one case that she was trying against a bank represented by a former judge, the judge frequently referred to Judge Graffeo as “my little friend” in front of the jury in an effort to undermine her effect. He failed, however, and after Judge Graffeo finished her direct case, the former judge offered her client a settlement much larger than they had anticipated.

Judge Graffeo began her government service as an assistant counsel at the New York State Division of Alcoholism and Alcohol Abuse, and served there until she was approached to become the floor counsel for the New York State Assembly Republicans and spent 10 years working in the Legislature. Eventually, Judge Graffeo became Chief Counsel to the Assembly Minority Leader, the first woman to serve in that role, where she was the only woman at the negotiating table with the Governor and his senior staff and the four leaders of the Senate and Assembly.

When George Pataki was elected New York Governor, Judge Graffeo was appointed the Solicitor General of New York. During her time as the Solicitor General, Judge Graffeo managed the State’s federal and state appellate caseload and took Vacco v Quill, a constitutional challenge to New York’s criminal statute banning assisted suicide to the US Supreme Court (seeVacco v Quill, 521 US 793 [1997]).

In 1996, Judge Graffeo was nominated to fill a judicial vacancy in the Supreme Court, Albany County bench when Hon. Lawrence Kahn was appointed a federal district court judge. Later that fall, Judge Graffeo ran for election to the bench in a hotly contested race for three seats among six candidates, four of which were incumbents.  She was surprised when she won (after suffering a larger than expected defeat in her home county, which was heavily Democratic), and so began Judge Graffeo’s long distinguished service on the New York bench.

Judge Graffeo sat on the Supreme Court for two years before she was appointed by Governor Pataki as an Associate Justice of the Appellate Division, Third Department. She debated applying for the position because she was the only woman on the trial court bench at the time (now Presiding Justice of the Third Department Karen Peters was an Associate Justice of that court then).  But, she decided that her elevation could encourage more women lawyers, and so she applied.  And two years after joining the Appellate Division, Judge Graffeo was nominated again by Governor Pataki, this time to be the third woman to serve on the Court of Appeals.

During Judge Graffeo’s 14 years on the Court, she left her mark on the Court and on New York law.  The case that I will always remember the most was the case that I was involved in, asking whether local municipalities were preempted by the Environmental Conservation Law from using their zoning powers to ban fracking. It was a very important case at the time for municipalities that feared the long-term impacts of fracking, coming before New York completed its environmental review and banned fracking entirely. Judge Graffeo’s reasoned analysis concluding that state law did not preempt local zoning authority was a perfect example of her measured writing tone and the detailed review of authority that were the hallmark of her opinions (see Matter of Wallach v Town of Dryden, 23 NY3d 728 [2014]).

Other of Judge Graffeo’s important opinions included whether it would violate the public trust doctrine to operate a restaurant in Union Square Park (see Union Sq. Park Community Coalition v New York City Dept. of Parks & Rec., 22 NY3d 648 [2014]), whether the Cayuga Indian Nation’s sale of cigarettes could be taxed under New York law (seeCayuga Indian Nation of N.Y. v Gould, 14 NY3d 614 [2010]), whether the tort of conversion applies to intangible electronic documents stored on a computer (see Thyroff v Nationwide Mut. Ins. Co., 8 NY3d 283 [2007]), and whether SEQRA applies to annexation actions (see Matter of City Council of City of Watervliet v Town Bd. of Town ofColonie, 3 NY3d 508 [2004]).

Associate Judge Susan Phillips Read


Associate Judge Susan Phillips Read was the fourth woman appointed to the Court of Appeals. Born in a small town on the banks of the Ohio River, Judge Read developed her lifelong love of reading, music, swimming, football, and the ballet as a young child. Following a family tradition, she graduated from Ohio Wesleyan University in 1969, and the University of Chicago Law School in 1972.

After law school, Judge Read worked at the US Atomic Energy Agency Commission in Bethesda, Maryland before she married her husband and moved to Albany, New York.  Although Judge Read wasn’t truly enthused about practicing law outside of a major metropolitan area, her husband was a native upstate New Yorker who, she said, “considered living more than 25 miles from the Saratoga [horse-racing] track a hardship too heavy to bear.” Living in Saratoga myself, I certainly understand his sentiment.

Upon her admittance to the New York bar, Judge Read worked as a staff attorney at the Central Administration of the State University of New York, before going in-house at GE.  She eventually rose to the position of GE’s Chief Environmental Counsel nationwide, a daunting task I’m sure. In 1988, Judge Read left GE to join Bond, Schoeneck & King as a partner in their Albany office, and was in the private practice for the next 7 years. In 1995, she joined Governor Pataki’s administration as Deputy Counsel to the Governor, and was appointed as a Judge of the Court of Claims, which hears contract and tort actions against the State, three years later.

After five years on the Court of Claims bench, four of which she spent as the Presiding Judge, Governor Pataki nominated Judge Read to the Court of Appeals. With her confirmation to the Court in 2003, it marked the first time in United States history that a state high court sat with a woman majority, with Judge Read joining Chief Judge Kaye, Judge Ciparick, and Judge Graffeo in the four judge majority. Often referred to as the “Renaissance Judge” for her broad interests, both legal and non-legal, Judge Read served on the Court for 12 year before deciding to retire in 2015.

Judge Read’s noteworthy opinions while on the Court include the interpretation of the scope of a brownfield site under the Environmental Conservation Law (see Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161 [2010]), issues of Partnership Law (see Ederer v Gursky, 9 NY3d 514 [2007]), whether an attorney in a medical malpractice action may interview an adverse party’s treating physician privately when the adverse party has affirmatively placed his or her medical condition in controversy (seeArons v Jutkowitz, 9 NY3d 393 [2007]), and whether grandparents were entitled to visitation over the parent’s objection (seeMatter of E.S. v P.D., 8 NY3d 150 [2007], among many others.

Associate Judge Shelia Abdus-Salaam

Associate Judge Shelia Abdus-Salaam was the sixth woman confirmed to the Court of Appeals (only a few months after current Associate Judge Jenny Rivera), and the first African American woman to serve on New York’s high court. Judge Abdus-Salaam, who was the direct descendant of a slave from Virginia, grew up in a working class family with six brothers and sisters in Washington, D.C. She attended the D.C. public schools, before going to college at Barnard College.

Judge Abdus-Salaam then continued onto law school at Columbia Law, where she graduated in the same class as former US Attorney General Eric Holder.

Judge Abdus-Salaam began her legal career at the Brooklyn Legal Services, representing the underserved in a wide range of legal matters. She then was hired as an Assistant Attorney General in the civil rights and real estate financing bureaus of the New York Attorney General’s Office.

Judge Abdus-Salaam began her career on the bench in the New York City Civil Court, where she served for one year before she was elected to Supreme Court, New York County in 1993. After 16 years on the trial bench, Governor David Paterson elevated Judge Abdus-Salaam to the Appellate Division, First Department, where she sat until her appointment to the Court of Appeals in 2013.

During Judge Abdus-Salaam’s short time at the Court of Appeals, she really left her mark on New York law. I discussed the true impact that her decisions had in the wake of her tragic death, but one case in particular should be mentioned again.

Judge Abdus-Salaam’s opinion in Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1 [2016]) will likely go down as her most important decision.  Prior to the ruling, the Court of Appeals had previously held in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]) that, “in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child’s ‘parent’ for purposes of standing to seek custody or visitation under Domestic Relations Law § 70(a), notwithstanding their ‘established relationship with the child.’”  Brooke S.B., 28 NY3d at 13. Concluding that the time had come to revisit that 25-year old rule “in light of more recently delineated legal principles,” Judge Abdus-Salaam, writing for the unanimous Court, overruled Alison D. and held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.”  Id. at 14.

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

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

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

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

Each of the women that have served with distinction on the Court of Appeals has left an indelible mark on the Court and the law. Their contributions cannot be overstated, and they all deserve the recognition they have received as phenomenal judges of the Court. Happy #WomenJusticeWeek!

How to Get to the Court of Appeals: Appellate Division Conflicts and Novel Issues

Few cases ever make it to the Court of Appeals.  The Court’s jurisdiction allows precious few grounds for direct appeals, namely, where a substantial constitutional question is directly involved and where there is a double dissent at the Appellate Division on a dispositive question of law.  All other cases get to the Court by seeking leave to appeal, either at the Appellate Division or from the Court of Appeals.

The Court doesn’t just take any case, however. In fact, the Court typically grants leave in only 5 to 6 percent of cases, and last year it was less than 2 percent. So, it has to be the right case.  

What does the Court look for? The Court’s certiorari factors are a good place to start.  Under 22 NYCRR § 500.22, the Court requires the parties to explain in their motions for leave to appeal how the questions presented “are novel or of public importance, present a conflict with prior decisions of this Court, or involve a conflict among the departments of the Appellate Division.”  The Court also looks for vehicle problems: are the issues preserved and reviewable; have the issues been sufficiently developed at the Appellate Division or could they use further percolation before Court of Appeals review; are the leaveworthy issues cluttered by other non-leaveworthy issues or insufficiently presented by the parties?  All of these things get considered when the Court is deciding whether to hear a case.

Here are some cases or issues that, in my view, could soon find their way to the Court.

Conflicts Among the Appellate Division Departments

  • What must be shown in opposition to summary judgment when the defendant establishes that one of the elements of the medical malpractice claim fails (compare Pullman v Silverman, 125 AD3d 562 [1st Dept 2015] [must show triable issues of fact on both departure from standard of care and proximate cause] with Stukas v Streiter, 83 AD3d 18 [2d Dept
    2011] [must raise triable issue only with respect to the issue disproven by defendant, not both])
  • Whether a CPLR 3217 notice of voluntary discontinuance can be served after the defendant has filed a motion to dismiss (compare BDO USA, LLP v Phoenix Four, Inc., 113 AD3d 507, 511 [1st Dept 2014] [holding notice of voluntary discontinuance untimely after motion to dismiss] with Harris v Ward Greenberg Heller & Reidy LLP, 2017 NY Slip Op 04970 [4th Dept June 16, 2017] [holding notice of voluntary discontinuance timely after motion to dismiss because such a motion is not a “responsive pleading”])
  • Whether 10 NYCRR part 1002’s use of funds rule, limiting the percentage of Medicaid funds that may be used by covered providers for administrative expenses and executive salaries, violates the separation of powers doctrine (compare Agencies for Children’s Therapy Servs., Inc. v New York State Dept. of Health, 136 AD3d 122 [2d Dept 2015] [holding it does not] with Matter of Leadingage N.Y., Inc. v Shah, 2017 NY Slip Op 05136 [3d Dept June 22, 2017] [holding restriction on executive compensation paid from any source, not just State funds, violates separation of powers])

Novel Issues of Statewide Importance

Want to take a case to the Court of Appeals and argue before the Court?  Just pick an issue off the list, and convince the Court that your case is the right one to help develop New York law.

This is just a short sample of issues that could soon find their way to the Court.  Know of others?  Let me know and I’ll turn this list into a running tallly.


The Appellate Division, Second Department granted leave to appeal to the Court of Appeals in Clement v Durban on May 9, 2017.  The Appellate Division, First Department also granted leave in Scavetta v Weschler on May 23, 2017.  So, the Court will be hearing both cases.

Governor Cuomo Nominates First Department Judge Paul Feinman to Fill the Late Judge Shelia Abdus-Salaam’s Seat on the Court of Appeals

On Thursday, Governor Andrew Cuomo announced his nomination to fill the Court of Appeals seat left vacant by the tragic death of Associate Judge Shelia Abdus-Salaam.  His pick: First Department Judge Paul G. Feinman, who not only brings more than 20 years of experience on the trial and appellate bench to the Court—a welcome addition—but who also will be the Court’s first openly gay judge.  Here’s Judge Feinman’s bio:

Needless to say, this is a momentous pick for the Governor, who has now also appointed the first African-American female judge (Shelia Abdus-Salaam) and the first Latino male judge (Michael Garcia) to the Court.  Congratulations for the pick rolled in quickly, including from the New York State Bar Association and the LGBT Bar Association of Greater New York, among others.

As Sharon Stern Gerstman, the President of NYSBA, put it:

Judge Feinman, by all accounts, is an outstanding jurist who will have big shoes to fill.  As I wrote in the wake of her death, Judge Abdus-Salaam’s decisions cemented her legacy on the Court as a smart and thoughtful judge who had a profound impact on New York law.  A review of Judge Feinman’s decisions shows he should follow in Judge Abdus-Salaam’s footsteps.

Having sat on the First Department for the past five years, Judge Feinman’s extensive experience resolving commercial cases will be an asset to the Court.  For example, in what should be Judge Feinman’s last opinion on the First Department, he dismissed a case alleging a scheme to defraud a Saudi Arabian residential real estate developer out of hundreds of millions of dollars owed to it by the Saudi government as time-barred under New York’s date of discovery rule for fraud claims (see MBI Intl. Holdings Inc. v Barclays Bank, PLC, 2017 NY Slip Op 04381 [1st Dept June 1, 2017]). In doing so, Judge Feinman reaffirmed the nearly 125-year-old rule that a person who thinks he or she may have been defrauded has a duty to inquire, and failure to do so when the fraud could have been reasonably ascertained may leave the claims time-barred if not brought within 2 years thereafter.

Judge Feinman also made significant contributions to defamation law in New York (see Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 37-38 [1st Dept 2014] [adopting test for defamation by implication: “To survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.”]), and to the rights of criminal defendants, among many other areas (see People v Hoey, 145 AD3d 118 [1st Dept 2016] [“defendant’s absence from colloquies before the trial judge relating to the admissibility of evidence of uncharged crimes and bad acts allegedly committed by defendant against his girlfriend, and others, deprived him of his right to be present at all material stages of the trial”]).

The next step in Judge Feinman’s nomination is a confirmation hearing before the Sebate.  The Senate typically has 30 days to hold the hearing, but they are currently scheduled to end the legislative session and leave Albany this Wednesday, June 21st. That leaves an incredibly short window for the Senate to schedule and hold a confirmation hearing.  But, after being so wrong about just how quickly this nomination process could go, I know now not to question whether it will get done in time before the end of the June legislative session.  So, there you have it, from Judge Abdus-Salaam’s death in early April to a new Court of Appeals Judge at the end of June.

Judge Feinman is only 57 years old, so he should be able to serve 13 years of his 14-year term, until the New York Constitution’s mandatory retirement provision forces him off the Court at the end of 2030.  Barring anything else unforeseen, the next nomination to the Court of Appeals won’t come until 2022, with the mandatory retirement of Judge Eugene Fahey.  After the frequent judicial turnover at the Court over the last few years, having five years without any changes on the bench will be most welcome.

New York Commission on Judicial Nomination Releases List of 7 Nominees for Court of Appeals Seat

The list of names to fill the Court of Appeals seat vacated after the tragic death of Associate Judge Shelia Abdus-Salaam has been narrowed to 7.  In what was a really quick two-week turnaround (the Commission’s selection process typically takes months), the Commission on Judicial Nomination reviewed 40 applications, interviewed 16 of the applicants, and sent a list heavy on serving appellate judges to Governor Andrew Cuomo to pick the next Associate Judge of the Court of Appeals.  Here are the nominees:

That’s five sitting Appellate Division Justices (four from the First Department, from which Judge Abdus-Salaam was appointed, and the Presiding Justice of the Fourth Department), one SDNY bankruptcy judge, and one attorney in private practice.  When you think about the current makeup of the Court, that the list is heavy on people with significant judicial experience isn’t surprising.  Of the 6 current Judges on the Court, only two were previously appellate judges–Judges Leslie Stein, who sat on the Third Department, and Eugene Fahey, who served on the Fourth Department.  The rest either have no prior judicial experience–Judges Jenny Rivera, Michael Garcia, and Rowan Wilson–or served on the trial bench–Chief Judge Janet DiFiore.  The Commission clearly appears to have recognized that when you are staffing the highest court in the state, it’s important to have a wealth of judicial experience from which to draw.

Indeed, Judge Feinman brings over 20 years of judicial experience from the New York City Civil Court, Supreme Court, and the First Department.  Judge Gische isn’t far behind, with 17 years on the bench.  Judge Webber has been a judge since 1994, and Presiding Justice Whalen since 2006.  Judge Richter beats them all, with 30 years as a judge, including the last 8 on the First Department.

As has been true with most Court of Appeals vacancies, the list contains a few repeat nominees.  Judge Vyskocil was previously nominated in 2014 while she was a litigator at Simpson Thatcher. Judge Gische has been nominated twice in 2015 and 2016. And Eric Corngold was nominated in 2016 as well.  It’s also noteworthy that the list contains two openly gay judges, who if nominated would be the first such Judges to serve on the Court of Appeals.

Governor Cuomo now technically has to wait 15 days to pick from the list of 7 nominees, as I discussed here.  But, in light of the Governor’s expressed goal to have the appointment made and the nominee confirmed by the Senate before the end of the legislative session at the end of the month, he may not wait the required 15 days.  As a Court of Appeals staffer pointed out to me, Governor Cuomo has in the past ignored the Judiciary Law provision that requires the pick to be made no earlier than 15 days and no later than 30 days after he receives the list from the Commission, and there really isn’t any enforcing authority that could make him wait for the “window” to make the pick.  So, with his own deadline for Senate confirmation looming in only a few weeks, and what is expected to be a packed end of the legislative session push, it would not be surprising to see the Governor meet with the nominees this coming week and have a pick before the 15-day waiting period ends.

Whoever Governor Cuomo picks for the vacant seat on the Court, New Yorkers can rest assured that the Court of Appeals will continue to remain in good hands.  For more information on the nominees, the Commission on Judicial Nominations’ list can be found here.



Court of Appeals Judge Michael Garcia to Interview for FBI Director

Virtually lost in the scandal surrounding the firing of FBI Director James Comey is that the President will now have to pick someone to succeed him as the head of the FBI.  Speculation has run rampant concerning a list of potential new directors, and one name on that list is, according to Politico’s sources, Court of Appeals Judge Michael Garcia.  He will interview with the President for the job this afternoon.

Judge Garcia, a former law clerk to then-Associate Judge Judith Kaye, was appointed to the Court of Appeals in February 2016, after a long and decorated career both in public service and in the private sector.  Particularly, according to his bio, Judge Garcia served as an Assistant United States Attorney in the Southern District of New York for almost ten years before he became the Assistant Secretary of Commerce for Export Enforcement in the Bureau of Industry and Security.  Judge Garcia also thereafter served as the  Acting Commissioner of the Immigration and Naturalization Service at the United States Department of Justice, and as Assistant Secretary for Immigration and Customs Enforcement at the United States Department of Homeland Security.  From 2005 to 2008, Judge Garcia was the United States Attorney for the Southern District of New York.  He then returned to private practice at Kirkland & Ellis.

Judge Garcia is eminently qualified to lead the FBI, and would be a great pick.  If he is chosen, however, the Court of Appeals will be left with only five Judges on the bench, with four votes required to reach a decision.  In any case with a recusal, the Court would have to be unanimous.  Judge Garcia’s potential appointment could leave the Court in a perilous position of being down two Judges until at least early fall, which appears to be the earliest that a judge could be appointed to fill the seat that was vacated after Judge Shelia Abdus-Salaam’s tragic death.

The question that gnaws at me is would Judge Garcia want the FBI Director role, especially now.  It certainly would fit in with his prior experience as a US Attorney.  The pay isn’t as good ($172,100 for the FBI Director, whereas a Court of Appeals Judge gets at least $192,500).  Plus, the FBI Director only gets a 10-year term (and possibly shorter because the Director serves at the pleasure of the President), while a Court of Appeals Judge serves a 14-year term or at least until the year he turns 70.  If it were me, I’d keep the Court of Appeals gig he already has, but everyone has their own aspirations. We will see.


On Wednesday, May 17th, Judge Garcia withdrew his name from consideration for the FBI Director.  The FBI’s loss is the Court of Appeals’ gain.  Judge Garcia would have been an excellent pick to lead the FBI given his fierce commitment to ethics and the pursuit of justice, but New York law is well served by keeping him on the Court of Appeals.

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