NYCOA: The Wilson Uptick

 Yikes! It's been a few months. First, it was severe neck trauma that kept me totally out of commission for a while, and since then it's been zealously catching up on delayed deadlines and postponed commitments. Now, for better or worse, I'm back!

There's lots to address about both the Supreme Court and New York's high court, the Court of Appeals. Let's begin with the latter. Specifically, let's take a look at a few developments since Rowan Wilson was elevated to Chief Judge this past April.

There has been an unmistakable increase in the Court's caseload. The dramatic drop in the number of cases that the Court was accepting and deciding in the previous several years was a source of widespread commentary. Most of it extremely critical. But whatever the assessment of that development, there could be no doubt that the caseload had indeed been reduced and that the reduction was dramatic--even drastic.

(See, e.g., in New York Court Watcher: The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload; The Graph; The Incredible Shrinking Docket: The Court of Appeals' CRIMINAL Caseload (with graphs!); The Incredible Shrinking Docket: Criminal Appeals (CLA's) Granted by Court of Appeals Judges. See also, Thomas R. Newman & James Edward Pelzer, Declining Dispositions of the Court of Appeals, Albany Law Review.)

(NYS Senate Media Services)

Currently, with Wilson at the helm, the size of the caseload is changing again. It's on the rise. And the increase is more than a blip.

[All the data relied upon here are from the monthly calendars published by the Court itself, accessible at https://www.nycourts.gov/ctapps/.]

Contrasting the numbers from before and after Wilson became Chief Judge makes that clear. Consider the Court's monthly oral argument calendars prepared since Wilson has been presiding, and compare those with the calendars for the very same months the previous year. Thus far, the Court under Wilson has produced calendars for the September, October, and November sessions of this year, and the January session of next. Let's contrast those calendars with those produced for the same months a year earlier.

First, for the four monthly pre-Wilson calendars, there were a total of 35 cases on the schedule. That is, for September 2022 there were 10 cases scheduled; for October of that year there were 8; for November, also 8; and for January 2023 there were 9.

One year later, with Wilson as Chief Judge, the total jumped to 51. That is, 13 oral arguments were scheduled for this past September; 13 again for October; 11 for November; and 14 have already been scheduled for this coming January. 

That's a 45% increase. Chief Judge Wilson has been unequivocal that he believes the Court should be taking and deciding more appeals than it had been. In the several months since he was appointed to the Court's center seat, the Court seems to be moving in that direction.

Now, to be sure, that increase only tells us what the change has been from a year ago to the present. It does not tell us whether the Court's caseload was already beginning to increase in the months immediately prior to Wilson's elevation. That is, whether the caseload reflected in the final few calendars prepared before Wilson became Chief would reveal that an increase was already underway. Those calendars would be the ones for the months just prior to the Court's summer break this year--i.e., February, March, April, and May of 2023. [N.B., even though Wilson was appointed Chief Judge in April, the May calendar indicates that it had already been prepared in March.]

Here are the figures for those immediately-pre-Wilson calendars: in February 2023, there were 9 cases; in March, also 9; in April, 11 cases; and 6 for May. That's a total of 35.  The very same as the caseload for the 4 months a year ago. Hence, they indicate the very same 45% jump in the first 4 monthly calendars prepared under Chief Judge Wilson.

(Skip Dickstein/Times Union)

One last point on this Wilson uptick. Although it is significant, it does not (yet?) return the Court to the kind of caseload brought about under Chief Judge Lippman. He, like Wilson, believed the Court should be taking and deciding more appeals than it had been before he was appointed--most notably for Lippman, more criminal appeals.

For the last four monthly calendars prepared under Lippman, here are the figures: June 2015, 19 appeals; September, 26 appeals; October, also 26; and November, the last calendar under Lippman, 12. That's 84 appeals heard in the last four monthly calendars under Lippman.

Here's what the Lippman to early-Wilson figures look like:

(click to enlarge for a better view)

As depicted in the graph, that total of 84 appeals calendared over the last four months under Chief Judge Lippman means that the Court's caseload was eventually reduced to less than one-half after his retirement--i.e., reduced to 35. It also means that the Court under Wilson--with 51 appeals scheduled over four months--still has quite a bit to go if it is going to return to the Lippman caseloads. That's a big if.

The answer to that question depends on how much Chief Judge Wilson actually wants to increase the Court's caseload and, of course, how much his colleagues are interested in doing the same. They--individually in criminal leave applications and collectively in civil motions for appeal--will ultimately be deciding.

In the next post, we'll focus on criminal appeals, first on cases actually calendared and then on Criminal Leave Applications. Regarding the latter, we'll be looking, as we have in the past, at which Judges have been more willing to grant these requests to appeal in criminal cases, and which Judges have been less so.

(Part 6) More NY Chief Judge Wilson's Majority Opinions in Divided Cases

In Part 5, we looked at a couple of majority opinions then-Judge Rowan Wilson had authored in divided criminal cases. Now we'll take a look at a couple of his majorities in divided civil cases.

Credit: Hans Pennink, AP

We previously saw, in Part 3 and Part 4, that in dissenting opinions he disagreed with his colleagues who rejected claims by those who were injured through the fault of others--whether the case involved a worker injured as a result of inadequately safe conditions at the workplace, or persons injured as a result of the negligence actions of municipal officials or their outright failure to act. Not surprisingly then, he similarly sided with workers and other injured persons in his majority opinions.

Let's look at two such cases:

Borelli v. City of Yonkers, 39 N.Y.3d 138 (2022)

This case involved a dispute between firefighters who retired as a result of disability or work-related injuries and the city for which they worked. The question before the Court of Appeals was the meaning of “regular salary or wages” for the purpose of calculating retirement benefits under the state's General Municipal Law. The specific issue that divided the Judges was whether the firefighters' holiday pay and check-in pay [Showing up for roll call, etc.] should be included in the calculation.

The city argued that holiday and check-in pays are "special" compensation. As such, they should not be included in calculating the retirees' benefits, unless they were specifically included in the collective bargaining agreement. They were not. Judge Garcia, in his dissenting opinion joined by then-Acting Chief Judge Cannataro, agreed with the city:

There is no dispute that the Retirees here suffered injuries while serving as firefighters and that General Municipal Law § 207–a provides for these Retirees to receive an award totaling the equivalent of their regular salary or wages when serving as active firefighters in compensation...The definition of “regular salary or wages”...is critical; any unwarranted expansion of the definition undermines the goals of the legislation, forcing municipalities to spend more on disability payments and less on active fire protection.

Where a collective bargaining agreement ... is entirely silent regarding the status of disabled fire[fighters] as employees of the city[, it] should not therefore be construed to implicitly expand whatever compensation rights are provided petitioners under the statute. [Citations and quotation marks omitted.]

Writing for the majority and siding with the retirees, Wilson interpreted the statute and the Court's precedents differently:

The dissent interprets “regular salary or wages” differently than the enacting legislature did. It argues that regular salary or wages only includes “ ‘regular,’ ‘base’ or ‘annual’ salary as defined in the CBA [collective bargaining agreement]” along with several other types of payments previously recognized by our doctrine. The dissent's approach, which seemingly looks solely to the placement of labels and headings in a CBA, would allow municipalities and unions to advantage current active firefighters at the expense of retirees disabled in the line of duty—something the statute was originally designed to prevent. 

Moreover, Wilson explained that the CBAs in question did include the two types of pay at issue by necessary implication:

Under the CBAs, the Retirees would have been legally entitled to the holiday pay and the check-in pay for performing their regular job duties. Consequently, those pays are part of the “regular salary or wages” to which they are entitled by General Municipal Law § 207–a (2)....

It is clear from the CBAs that all firefighters are entitled to receive holiday pay and check-in pay based solely on the performance of regular job duties. The provisions of the CBAs governing check-in pay require that firefighters be present for duty 12 minutes prior to the commencement of their tours of duty [and] specify, without qualification, that each employee “shall receive an additional [5½] days [of pay]” per year. The provisions governing holiday pay provide that firefighters shall be paid for 12 holidays, “whether worked or not.” Hence, all active-duty firefighters performing their regular job duties are contractually entitled to receive both check-in pay and holiday pay. [Emphasis added.]

And contrary to the city and dissenters' argument that it was unfair to treat inactive firefighters as generously as those who are active, Wilson responded:

Including holiday and check-in pay does not pose the risk of unfairness we [have previously] cautioned against. [W]e noted that it would not be appropriate to “imply a right to vacation benefits under section 207–a because disabled fire[fighters] do not have to work at all"...[But i]f compensation is provided in exchange for the performance of an employee's regular job duties, it would not be unfair to provide that payment to a disabled firefighter because, but for their injury, they would be entitled to receive that compensation....

Because the CBAs plainly entitle all active-duty firefighters to holiday and check-in pay, Yonkers's determination that these did not constitute “regular salary or wages” under General Municipal Law § 207–a (2) was based on an error of law. [Emphasis added.]

It would seem that the Court legitimately could have decided the case either way. Strong arguments supported each side. But Wilson, as he typically does, sided with the workers where the competing arguments were well-balanced, or even closely so. The next case we look at demonstrates the same.
 

Matter of New York City Asbestos Litigation, 33 N.Y.3d 20 (2019)

This case involved a claim for damages by a worker for mesothelioma resulting from his employment aboard ships owned by the defendant corporation. The issue to be resolved was whether the settlement and release previously agreed to by the worker precluded the lawsuit. Chevron--the successor in interest to Texaco, which had settled with this and other workers--contended that the release included claims for any and all asbestos-related diseases.

The Court of Appeals split 4-3 in favor of the worker. Judge Garcia--this time in a dissenting opinion joined by then-Chief Judge DiFiore and Judge Stein--agreed with Chevron that it was entitled to summary judgment against the worker. Garcia stated his view of the case succinctly in his opening paragraph:

More than twenty years ago, plaintiff, a merchant marine, sued a ship owner for injuries related to alleged asbestos exposure sustained while serving aboard the owner's vessel. The parties swiftly settled and, in exchange for compensation, plaintiff executed a comprehensive release, agreeing to forfeit “any and all” claims for known or potential injuries suffered as a result of his alleged exposure. Despite that release, the same seaman, with the same counsel, is again suing the same ship owner for injuries sustained from that same asbestos exposure. The majority declines to enforce the parties' agreement, holding that defendant failed to meet its burden of demonstrating the validity of the release.

Quoting the release itself,  Garcia argued that the worker had specifically forfeited all claims for harm "known or unknown, present or future." As noted in Garcia's opinion:

Less than two months after filing [the original] suit, plaintiff and Texaco reached an agreement to settle plaintiff's claim. In exchange for $ 1,750, plaintiff agreed to release Texaco from “any and all claims for damages as alleged, or which could be alleged, for the injuries, sickness and/or disease allegedly caused as a result of the exposure to asbestos, silica, asbestos fibers, and asbestos dusts, and/or silica or asbestos-containing products, smoke and carcinogenic chemicals (not including benzene or products containing benzene).”

Writing for the majority and rejecting summary judgment for Texaco's successor, Wilson saw the case differently. The release should be read more narrowly than Chevron and the dissenters contended:

Chevron has not met its burden to demonstrate the absence of any material question of fact. The 1997 release does not unambiguously extinguish a future claim for mesothelioma. The release itself does not mention mesothelioma. It does say that [plaintiff] “is giving up the right to bring an action against the Released Parties, or any of them, in the future for any new or different diagnosis that may be made about Claimant's condition as a result of exposure to any product[.]” But “claimant's condition” may cabin the “new or different diagnosis” to ones that related to his nonmalignant asbestos-related pulmonary disease—the “condition” both parties agree was the only one he suffered at the time.[Emphasis added.]

Next, Wilson addressed the significance of plaintiff's original complaint against Texaco, which did mention mesothelioma:

The complaint [against Texaco] does not assist Chevron in resolving the release's ambiguity. [It] at most demonstrates that both Texaco and [plaintiff] were aware that all of the [mentioned] conditions, including mesothelioma, might result from exposure to asbestos, but the absence of mesothelioma (and the other cancers) from the release could readily support the conclusion that the omission of mesothelioma (and the other cancers) from the language of the release was deliberate. The dissent complains that we have set an [“impossibly high”] burden for employers to settle with mariners, but that is not so. It would hardly have been “impossible” for Texaco to insist on including mesothelioma in the release.

Wilson also noted the paltry sum that Texaco paid the worker for signing the release, which Chevron argued had extinguished all claims for any possible asbestos-related disease:

As to the adequacy of the consideration, nothing in Chevron's summary judgment proffer established the amount paid by Chevron in exchange for Mr. South's settlement and release, although the parties agree that Mr. South received $ 1,750 from some omnibus amount paid by Texaco to settle his and other claims. 

Finally, Wilson made clear that, at this point in the litigation, the majority was not rendering a final judgment but, rather, was denying Chevron's request for a summary dismissal in order to allow the worker a full evidentiary hearing:

To be clear, it is possible that additional evidence could be developed that would validate the release and extinguish [the worker's] claims. However, applying [the] heightened standard in the summary judgment posture, the record is presently insufficient to demonstrate the effectiveness of the 1997 release as a matter of law.

At the risk of beating the drum, both the Borelli and Asbestos Litigation cases discussed here--just like the Cutaia, Ferreira, and Howell cases discussed previously--illustrate pretty clearly the new Chief Judge's inclinations in disputes between, on the one hand, workers injured on the job or other persons injured through no fault of their own, and on the other hand, employers or negligent public officials. In cases that are obviously close, where arguments on both sides are strong, where the Court could fairly decide the case either way, and where, consequently, his colleagues are deeply divided, he typically chooses those legitimate arguments that favor the injured party. 

As with the criminal cases, we shall see whether, with Wilson now in the center seat, there will be some movement away from the more conservative direction the Court took over the past several years in civil cases--i.e., less sympathetic than Wilson to workers and injured parties and more favorable than him to employers and municipalities. We'll keep an eye on that.

(Part 5) NY Chief Judge Wilson's Majority Opinions in Divided Cases

It is vital that we restore the Court

to its position of national preeminence.

--Chief Judge Rowan D. Wilson, Opening Remarks

Senate Confirmation Hearing, April 17, 2023 

 

At Columbia Law School

In previous posts in this series, we reviewed Rowan Wilson's eventual selection to sit on New York's highest court in 2016 by then-Governor Andrew Cuomo, and his nomination to be Chief Judge this past April by Governor Kathy Hochul. We then looked at a few of his dissenting opinions to get a sense of the legal principles that presumably are important enough to him to disagree publically with his colleagues, first in criminal cases and then civil. In the last post, we focused on his dissent from a particularly disconcerting decision of his Court applying its so-called "special duty" rule to reject any legal responsibility of a municipality, despite the dreadful consequences suffered by a victim because of the repeated failures of the municipality's officers.

Although we have emphasized Wilson's dissenting opinions--they are typically the most revealing about a judge--he has actually authored his fair share of majority opinions. During his tenure on the Court, he has averaged nearly eight signed opinions for the majority annually. Except for Chief Judge DiFiore, who wrote more than the others, the rest of his colleagues had virtually the same average during that period--some slightly less, some slightly more. 

So let's take a look at a few of Wilson's majority opinions. And more specifically, let's look at a few of the more revealing ones, where the Court was divided and his dissenting colleagues raised competing arguments which he necessarily rejected in favor of his own. First, a couple of Wilson's majority opinions in criminal cases:

People v Regan, Slip Op 01353 (March 16, 2023)

This is the decision for which Wilson was most vigorously criticized by Republican senators during his confirmation proceedings and which has been condemned by some sexual-assault victim advocates.

Speaking through then-Judge Wilson's majority opinion, the Court of Appeals reversed a conviction for rape and burglary on the basis of a violation of the state constitutional right to a prompt prosecution. The defendant was accused of raping the complainant in August 2009, but the prosecution waited more than four years to seek an indictment. In fact, the prosecution did not even seek a warrant to obtain the defendant's DNA until more than three years after the rape complaint. Beyond that, the prosecution, when asked, could not offer any justification for most of the delay. 

Two Judges on the Court, Michael Garcia and Madeline Singas, would have upheld the conviction. As Judge Singas put it in her lone dissenting opinion:

The People lack a credible justification for the 31–month delay in seeking a search warrant for defendant's DNA. But there is no evidence that their actions, or lack thereof, were taken in bad faith toward defendant, with the aim of prejudicing his ability to defend himself....[D]ue process does not require the drastic remedy of dismissing this case. Where the crime is of the utmost severity, defendant was not incarcerated, there was no public accusation, and defendant has shown no actual prejudice from the delay, dismissal of the accusatory instrument is unwarranted. 

Judge Wilson, writing for himself and three of his colleagues, had a different take on the state's constitutional law:

Because of the substantial delay—as to most of which the People offer no explanation whatsoever—the constitutional right to prompt prosecution, embodied in the due process clause of our state constitution, was violated. We must reverse. [Emphasis added.]

Reviewing the Court's prior decisions, Wilson noted that "we have been much more solicitous of the People when they offer even a colorable explanation for their delay." But, as he repeated several times in his opinion, "the record and the briefing in this case are devoid of any explanation for the People's delay, although the People had multiple opportunities to provide one."

Concluding his opinion, Wilson weighed the costs and, in the Court's view, the overriding benefits of the state's constitutional prompt prosecution policy:

Vacating any conviction on prompt prosecution grounds runs a genuine risk that a guilty person will not be punished, or, as in this case, not finish out his full sentence. However, vital societal interests can overcome that cost. Our jurisprudence ensures that trials are fair and accurate; it also spurs prosecutors to take crime seriously and give all parties the prompt closure they need to move on with their lives. 

The constitutional guarantee of a prompt prosecution places a burden on the state, when prosecuting crimes, to do so with alacrity... Our constitution allows for modest unexcused delays; it allows for lengthy justifiable delays. But it does not allow for lengthy unexplained or, as here, inexplicable delays caused by lethargy or ignorance of basic prosecutorial procedures. The constitutional prompt prosecution guarantee benefits defendants, victims and society at large, and it is the role of the courts to protect it. In this case, the police and prosecutors did not take defendant's constitutional rights or the complainant's sexual assault seriously; they did not act expeditiously with regard to either. [Emphasis added.]

No question, that was a tough one. For the purposes here, there are at least two salient characteristics of Wilson's position. First, as we have seen previously in his dissents in criminal cases, he vigorously supports the rights of the accused. Crime control versus due process? It's pretty clear he sides with the latter when the balance is close. Second, he adheres to New York precedent and state constitutional law where federal precedent would be less protective.

The same two patterns are apparent in the next case we review.

People v. Gordon, 36 NY3d 420 (2021)

In this search and seizure case, the police had observed incriminating drug activity inside the defendant's home. They then obtained a warrant to search “the person of [the defendant] and the entire premises.” The question before the Court arose, not from the officers' search of the defendant and his residence, but of the two cars on the property--one in the driveway and one in the backyard. 

The evidence found in the vehicles was suppressed by the trial judge. The affidavit for the warrant had made no mention of the vehicles or given any reason to believe that they were involved in criminal activity. The Appellate Division affirmed the trial court's decision.

At the Court of Appeals, the prosecution urged the Court to adopt the rule adopted in other courts, federal and state, that authority to search the premises reasonably includes searching vehicles on that property. In a 4-3 decision, the Court in Gordon rejected that rationale. The 3 dissenting Judges argued that the Supreme Court would allow a search of the vehicles and that the Court of Appeals had not previously adopted a more protective rule. 

Echoing the prosecution's reliance on the Supreme Court's decision in United States v. Ross (1982), the dissenters insisted that:

Where a search warrant authorizes the search of premises, a separate showing of probable cause is not required to search containers found on the designated premises, if the object of the search could be found therein...The [Supreme] Court broadly stated that a “lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search [and] this rule applies equally to all containers” [quoting Ross, again]...There is no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers...the central purpose of the Fourth Amendment forecloses such a distinction” [Ross again].

In sharp contrast, the majority opinion authored by Wilson relied on the Court of Appeals' own precedents. [I have omitted the citations in these excerpts.] As those numerous prior decisions cited throughout Wilson's opinion make clear:

The requirement that warrants must describe with particularity the places, vehicles, and persons to be searched is vital to judicial supervision of the warrant process. Warrants “interpose the detached and independent judgment of a neutral Magistrate between the interested viewpoint of those engaged in ferreting out crime and potential encroachments on the sanctity and privacy of the individual.” 

To further that role, our constitution assigns to the magistrate the tasks of evaluating whether probable cause exists to initiate a search and defining the subjects to be searched....The particularity requirement protects the magistrate's determination regarding the permissible scope of the search. Thus, to be valid, a search warrant must be “specific enough to leave no discretion to the executing officer.” So important is the role of the neutral and detached magistrate that we have in the past parted ways from federal constitutional jurisprudence when we believed that an emerging rule of federal constitutional law “dilute[s] ... the requirements of judicial supervision in the warrant process." [Emphasis added.] 

Among the Court of Appeals' precedents Wilson relied on were:

People v. Keta [1992] [declining to incorporate a federal rule permitting warrantless searches of business establishments in light of the paramount importance of “advance judicial oversight” under Article 1, Section 12 of the State Constitution]; P.J. Video [1986] [distinguishing federal constitutional law in part of the grounds that New York imposes a “rigorous, fact-specific standard of review ... upon the magistrate determining probable cause”].

Wilson added that, even in the absence of all those independent state precedents, the majority would still not adopt the less-protective Supreme Court jurisprudence embraced by the dissenters:

Even were we writing on a blank slate, we would not adopt the rule advocated by the People. The touchstone of the [New York] constitutional protection for privacy, under Article 1, Section 12 of the State Constitution, is whether a person has a reasonable expectation of privacy. Those expectations must at times give way to “compelling police interest[s].” Even then, the permissible “scope of a search has been carefully limited” by the requirement for probable cause and a particular description of the subjects to be searched. Those limits have not been honored in this case. [Emphasis added.]

Finally, directly addressing the dissenting opinion with Court of Appeals' precedents that stand for the opposite of what the dissenters argued, Wilson wrote:

[T]he dissent never addresses the fundamental tenets of our search warrant jurisprudence: it is the magistrate, and not the police officer, who determines the scope of the search conducted pursuant to a warrant...That determination must be based upon the factual allegations presented in the warrant application. To satisfy the constitutional requirement for particularity, the description setting forth the search must “leave no discretion to the executing officer[s].” If, as the dissent says, trafficking in drugs provides probable cause to search vehicles, the officers can set forth the results of their investigation...and make their case to the magistrate. If that proof is insufficient to convince the magistrate to authorize a search of the vehicles, allowing a search because the vehicles are located on a premises would constitute an unconstitutional bootstrapping. [Emphasis added.]

As we have seen in Wilson's other criminal law opinions, whether a dissent or a majority, he takes the rights of the accused seriously. Some, such as those Judges in the majority when he was in dissent, and vice-versa, believe he gives too little weight to the interests of law enforcement. In most criminal cases, the question is always about balancing. It has been in the criminal cases we have discussed here and previously. And these cases have shown that Wilson is less willing than others to compromise the rights of the accused in order to facilitate the interests of crime control.

Moreover, we have seen that he makes no apology for deciding constitutional issues in New York cases based on New York law and on New York Court of Appeals precedents. That may seem such an obvious role and responsibility of a state high court. But there are still those, in New York and in other states, among the judges as well as the lawyers who argue before them, that relying on independent state constitutional law should be the exception, and that applying less-protective Supreme Court case law is the default.

Of course, that unfortunately common notion is directly contrary to an axiom of our federal system of government in which states are sovereign to have their own laws and make their own decisions. The limitation--again, of course--is that they must not violate federal law. In the criminal cases we have been discussing, that simply means that a state court decision must not violate a federal constitutional right by affording less protection to the accused than the Supreme Court requires. But there is certainly no requirement whatsoever that a state court adopt a less-protective federal Supreme Court standard. 

I have spoken and written a great deal about the axiomatic right and responsibility of state courts in our federal system to engage in independent state-based decision-making. (See e.g., Supreme State Courts: Protecting Rights and Liberties Despite the Supreme Court, 85 Albany Law Review (2022).) More importantly, many years ago, the Court of Appeals itself made the point unqualifiedly clear. In People v. Barber [289 N.Y. 378 (N.Y. 1943)], rejecting the argument that it should follow a recent decision of the Supreme Court, the Court of Appeals protected religious liberty more than Supreme Court precedent required. Speaking through Chief Judge Irving Lehman, the Court of Appeals reminded advocates:

Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. [Emphasis added.]

It certainly seems from these majority opinions of now-Chief Judge Wilson, as well as in his criminal law dissents that we reviewed previously, that he understands the Court of Appeals' right and responsibility "to exercise independent judgment."

In the next post, we'll look at a couple of Wilson's majority opinions in civil cases.

(Part 4) One More: Then-Associate Judge Wilson Versus the Majority's "Special Duty" Rule

NY Senate Photo

Shortly before his elevation to Chief Judge, Rowan Wilson made clear in his dissenting opinion last year, in Howell v City of New York (November 22, 2022), that the majority's application of the "special duty" rule is a true abomination. Sorry, but it's hard to characterize it any other way. Wilson did manage to express it more elegantly.

First, the aftermath:

Several weeks ago, on April 3rd of this year, Dora Howell's body was found in a crawl space under the basement of the residence in which she lived. 

Here's the background:

Andre Gaskin, Dora Howell's ex-boyfriend, lived in an apartment below hers. He had been abusing her for 15 years. 

During that time, Dora Howell had called the police numerous times and had obtained several orders of protection against Gaskin. Following an assault in March of 2008, which resulted in her hospitalization, Howell obtained the first order of protection. Within the next several weeks, however, Howell contacted the police nine separate times to say that Gaskin was violating the order, coming to her apartment, and assaulting her. In the course of the next several months and subsequent orders of protection, Howell was repeatedly assured by the responding officers that they would take care of the situation and remove Gaskin from the premises. They never did. Gaskin continued to live in the apartment below hers, continued to assault her, and the responding officers continued to leave Gaskin in the building.

In November of that year, Gaskin stopped Dora Howell from leaving their building and dragged her by the hair up to his 3rd-floor apartment. When she went to the window to yell for help, he pushed her out. She was found on the pavement screaming for help and unable to move with serious injuries to her pelvis, hip, and spine. She was hospitalized for over a month and underwent multiple surgeries.

Eventually, Gaskin was arrested, he pleaded guilty to assault and violating orders of protection, and he was sentenced to a maximum of seven years in prison. He was released in 2014.

Dora Howell brought an action against the City and the responding officers for their negligence in failing to enforce the orders of protection and for failing to protect her against Gaskin's repeated assaults. In 2022, on the appeal of her case to New York's highest court, the majority held that the "special duty" rule required that her complaint be summarily dismissed.

Five months later, Dora Howell, who had been missing, was found dead.

The Court of Appeals Decision:

In an unsigned memorandum decision, a 4-2 majority ruled that Dora Howell was owed no "special duty" by New York City and its responding officers. Over the dissenting opinions by then-Judge Rowan Wilson and Judge Jenny Rivera, the majority explained:

Over the last several decades, this Court has established an approach to such cases that permits recovery against the government only in a narrow set of circumstances. Although typically applied to tragic facts befalling an individual, the special duty rule's purpose is to permit the government to protect its citizenry as a whole by allocating its resources in a manner that best promotes public welfare.

Yes, as the majority noted, "this Court has established [that] approach." This "special duty" rule is the Court's own. It is not mandated by legislation or by any authority other than the Court itself. As such, nothing prevents the Court from refining, tailoring, or even doing away with this rule--again, of its own making--in the interests of the most basic fairness and decency.

Nevertheless, where basic fairness and decency would surely have dictated a different result, the majority rigidly applied the rule to its questionable interpretation of the facts:

[The responding police officers] did not voluntarily assume a special duty in plaintiff's favor...[T]he police were not on the scene or in a position to provide assistance if necessary, nor had they promised to 'provide assistance at some reasonable time.' In these circumstances, plaintiff could not have justifiably relied on any promises made or actions taken by defendants.

Then-Associate Judge Wilson's Dissent:

Not surprisingly, Wilson saw things much differently. He might not have expressed himself as heatedly as other justified dissenters have. (See e.g., Judge Bellacosa's dissent in Kircher v. City of Jamestown [1989] [the majority held that police failure to take any action after promising to rescue a kidnapped woman created no "special duty" to her]; and Judge Jasen's dissent in Tebbutt v. Virostek [1985] [the majority held that the physician who negligently killed the unborn child owed no duty to the expecting mother].) Nevertheless, Wilson's dissent leaves no doubt that he viewed the majority's decision as an outrage.

As he customarily does in his opinions, Wilson began in clear, unmistakable terms, setting forth what the case was really about, without resort to legalese that would cloud what was at stake:

Passersby found Dora Howell face down on the pavement outside her apartment building, screaming for help and unable to move. Ms. Howell's knee, pelvis, and hip were all broken, and her spine was fractured. She remained in the hospital for over a month undergoing surgeries to treat her extensive injuries. How did this happen?

Unfortunately, such incidents are far too common. Ms. Howell's ex-boyfriend, Andre Gaskin, dragged her by the hair into his third-floor apartment, a floor above hers, and physically assaulted her. When Ms. Howell went to the window yelling for someone to call the police to help her, Mr. Gaskin said, "You want help? I'll send you for help," and threw her out of the window.

Mr. Gaskin had violently assaulted Ms. Howell before, beginning when she was pregnant with their child. The first time he assaulted her, he threw her on the floor and kicked her stomach, causing her to bleed and require hospitalization. On the basis of that assault, Ms. Howell obtained an order of protection against Mr. Gaskin, requiring him to stay away from and not communicate with her. Based on Mr. Gaskin's subsequent conduct, Ms. Howell obtained seven additional orders of protection against him, the most recent of which issued less than two months before Mr. Gaskin threw her out of the window. How did it happen that a woman who obtained eight orders of protection against the same abuser wound up unprotected?

Wilson continued, again in clear and unmistakable terms, detailing the underlying basis for Dora Howell's claim against the City and its officers:

Orders of protection are supposed to mean something. Ms. Howell called the police to report violations of the September 26th order on October 7, October 15, October 18, October 29, November 5, November 6, November 12, and November 13—each time explaining that Mr. Gaskin had violated the order of protection. Three times in the weeks leading up to this incident, the same two police officers...responded to her calls. As explained below, they assured Ms. Howell that they were handling the situation, yet completely failed to do so. Their actions and inactions rendered Ms. Howell's multiple orders of protection meaningless, constituting both a dereliction of their duties and an affront to the courts.

Having laid bare the facts in no uncertain terms, Wilson did the same for the law applicable to the eight orders of protection Dora Howell obtained against Gaskin:

[O]ur legislature in 1994 required officers to arrest persons in violation of domestic violence protective orders. The legislation removed all discretion from officers: even if a victim of domestic violence begs the officers not to arrest the violator, the police must arrest him. On numerous occasions, Mr. Gaskin was present at the scene when the police arrived and observed him in violation of the orders of protection. Each time they refused to arrest him in the face of a statutory requirement that they do so.

I would hold that CPL 140.10 (4) (b) [The Domestic Violence Intervention Act of 1994] establishes a statutory special duty for holders of domestic violence protective orders....Ms. Howell, who had eight domestic violence orders of protection against Mr. Gaskin ordering him to stay away, is a member of the class for whose benefit CPL 140.10 (4) was enacted: victims of domestic violence who have obtained orders of protection.

And Wilson directly addressed the majority's rejection of any duty owed by the City and its officers to Dora Howell:

Most fundamentally, victims of domestic violence who have obtained orders of protection from our courts are a limited class of persons justifiably entitled to rely on the DVIA's mandatory arrest provision. How could it be otherwise? The majority's holding—that despite the multiple orders of protection and emphatic action by the legislature and Governor requiring the arrest of violators of such orders, two officers are able to countermand all three branches of government and render the victim's reliance on the law "unjustifiable" —is baffling. 

Wilson's concluding words reminded the majority that its "baffling" decision was not dictated by any authority other than its own interpretation of the Court's own common law which, in the Court's finest tradition, has typically been refined in the interest of basic decency and equity:

Here, the majority holds that a victim of domestic violence, granted special protections by the courts and legislature, may not recover damages when officers violate the law. The genius of the common law is that it does not require that outcome, but allows our court to adjust the common law doctrines of negligence and special duty as fairness and justice require.

The majority's ruling is indeed as baffling to me as it was to Judge Wilson (and to Judge Jenny Rivera, who also dissented)--as well as unnecessarily dogmatic and callous, especially in light of the overarching policy of the Domestic Violence Intervention Act. One hopes, and I make no bones that I do, that with Rowan Wilson now presiding over the Court of Appeals as Chief Judge, he might be able to mitigate the Court's abominable "special duty" rule.

Similarly, referring back to other Wilson dissents we've discussed in this series, one hopes--again meaning me--that the Court also mitigates, refines, dilutes, distinguishes, or just outright overrules some recent case law on the right to counsel, wrongful convictions, worker rights, and other areas of the law, where the Court seems to have taken a reactionary turn in the last several years.

(Part 3) NY Chief Judge Nominee/Appointee Rowan Wilson

Protecting the rights of New Yorkers is my top priority.

--Rowan D. Wilson,

upon his nomination to be Chief Judge

(Yes, it's been a few weeks. End-of-semester review sessions, exams, grading, and other pre-occupations.  Indeed, some of the latter were following and interviewing on the selection of the new Chief Judge and on filling the resulting Associate Judge vacancy. In case of interest, here are links to a few of those interviews: How might Rowan Wilson operate as Chief Judge of NY?, PBS, New York Now, 4/21/23 [tv/video: https://www.pbs.org/video/how-might-rowan-wilson-operate-chief-judge-ny-umkeke/]; State's top court poised for shakeup, Capitol Pressroom, 4/14,23 [radio/podcast: https://twitter.com/CapPressRoom/status/1646932620419145742]; NY's Next Chief Judge with Prof. Vin Bonventre, Albany Law School Podcast, 4/6/23 [podcast: https://podcasts.apple.com/us/podcast/nys-next-chief-judge-with-prof-vin-bonventre/id1504271732?i=1000607712208].)

In Part 1, we traced Rowan Wilson's eventual nomination by former Governor Andrew Cuomo to the Court of Appeals on Wilson's 6th inclusion on the nominating commission's list between 2013 and 2017. In Part 2, we looked at a couple of Wilson's representative dissenting opinions in criminal cases--those "pleas for greater justice, decency, and wisdom," where he apparently "felt compelled by principles higher than consensus and unison to protest publicly what [his] colleagues had decided." (See Great Dissents: 'Matters of High Principle' at the Court of Appeals, 94 N.Y. ST. B.J. 23 (Nov./Dec. 2022).

Let's now look at a couple of Wilson's (pre-Chief Judge) dissents in civil cases.

Cutaia v. Board of Managers of 160/170 Varick St. Condominiums, 38 N.Y.3d 1037 (2022)

In a 4-3 decision--issued in an unsigned memorandum consisting of two superficial paragraphs--the majority reversed an Appellate Division ruling that sided with a seriously injured worker. In short, while he was working on a building renovation project, the worker fell from a concededly inadequate ladder after coming into contact with live electric wires. According to the majority, because the worker could not recollect anything about the fall and his expert's affidavit was supposedly conclusory, the worker failed to establish the proximate cause for his injuries.

Then-Judge Wilson, joined by Judges Jenny Rivera and Shirley Troutman, disagreed with the majority's dismissive treatment of the injured worker's claim. As Wilson put it, the worker's case was "a prototypical example of the situations the legislature sought to remedy through Labor Law § 240 (1)." He explained:

[The worker] was provided an inadequate ladder for his job, and that inadequate ladder was a proximate cause of his fall-related injuries. Mr. Cutaia need demonstrate nothing else to obtain partial summary judgment under Labor Law § 240 (1); the inquiry stops there.

Judge Wilson detailed what happened:

Michael Cutaia was a plumber. His employer directed him to reroute pipes located above a drop ceiling that contained both pipes and electrical wiring. Mr. Cutaia was provided an A-frame ladder for the work…To access the pipes, Mr. Cutaia had to close the ladder and lean it against a wall. When he climbed the closed ladder and reached for a pipe, he was shocked by an exposed electrical wire and fell to the ground….

Mr. Cutaia was severely injured. He was burned on his left hand and the left side of his chest down to his hip, causing some scarring. He also suffered herniated discs in his neck, bulging discs in his lower back, and a torn labrum in his shoulder, resulting in chronic pain in his shoulder, neck, and lower back and numbness in his hands and feet. He has subsequently had three shoulder surgeries and a superior cervical fusion and discectomy in his neck.

Wilson made clear how the law and the litigation supported the worker:

Mr. Cutaia sued to recover for his injuries. He alleged violations of Labor Law § 240 (1), which requires contractors and owners to provide adequate safety devices to persons engaged in elevation-related work. [It] "imposes upon owners, contractors and their agents a nondelegable duty that renders them liable regardless of whether they supervise or control the work" (Barreto v Metropolitan Transp. Auth., 25 NY3d 426, 433 [2015]). A violation of the statute gives rise to absolute liability (Zimmer v Chemung County Performing Arts, 65 NY2d 513, 522 [1985])….

Contrary to the majority's assertion…uncontroverted evidence established that Mr. Cutaia was given an A-frame ladder [] and could only use that ladder in an unsafe manner (folded and leaned against a wall) to perform the work he was assigned. When Mr. Cutaia used the ladder, he fell and was injured by the fall….Even the defendants admit that the ladder here was an inadequate safety device for the assigned task, because it could not be used as designed for that task...

Mr. Cutaia submitted an expert affidavit averring that the failure to provide an adequate ladder or other safety devices was a proximate cause of his injury…. The defendants tendered no contrary expert opinion or other proof to controvert Mr. Cutaia's expert [and] during oral argument, counsel for defendants agreed that Mr. Cutaia bore no burden to show that some other safety device would have better protected him.

 Wilson's dissent--his "plea for greater justice, decency, and wisdom"--is all the more compelling when one considers that the bare majority went out of its way, in an unsigned writing no less, to overrule an Appellate Division decision that had sided with the injured worker.

Ferreira v. City of Binghamton, 38 NY3d 298 (2022)

In the past, dissenting Judges have condemned the patent injustices wrought by the Court's so-called "special duty" rule. For example, a municipality was held to be immune from liability to a woman who was brutally beaten and raped because it had no "special duty" to her, even though the city's police officer had utterly failed to take action after he assured witnesses of the woman's kidnapping that he would do so. (Kircher v. City of Jamestown, 74 N.Y.2d 251 [1989] [Judges Hancock and Bellacosa dissented]) The Court similarly ruled that the same immunity and absence of "special duty" applied where the city's medical examiner failed to disclose corrected autopsy findings--that the decedent was not the victim of a homicide--even though the plaintiff was enduring a continued investigation for murder that wreaked havoc on his family and health. (Lauer v. City of New York, 95 N.Y.2d 95 [2000] [Judges G.B. Smith and Bellacosa dissented].)

Last year, in Ferreira, instead of curbing the "special duty" rule or at least keeping it within its traditional limits, the Court actually extended it.

The case involved a plaintiff who was shot and seriously injured by a police officer who mistakenly believed he was armed. The shooting occurred in the course of a no-knock "dynamic entry" by a SWAT team into a residence in which the unarmed plaintiff had been sleeping on the living room couch. On appeal in federal litigation applying New York law, the Second Circuit certified a question to the Court of Appeals, asking whether the state's "special duty" rule applied to the negligent actions of municipal employees, or only to their failures to take protective action.

In a 5-2 decision, the Court of Appeals majority rejected the notion that "a special duty is required only in cases where the municipality allegedly fails to protect a plaintiff [and] does not apply where a municipal employee inflicts the injury in question." Stated otherwise, for the "special duty" requirement, the majority rejected any "distinction between affirmatively inflicted injuries and those occasioned by a failure to adequately respond or protect." 

Then-Judge Wilson, joined by Judge Rivera, protested the majority's expansion of the "special duty" requirement and took issue with the entire framework of the rule that the majority embraced. As he put it:

The "special duty" is not, as the majority suggests, a restrictive requirement that applies to all negligence suits against governmental entities acting in a governmental capacity. Instead, it arises where the governmental actor has, through its actions as to a specific, identifiable individual, undertaken a duty it would not otherwise have.

Wilson continued:

We have typically considered the "special duty" doctrine where a municipality has failed to protect the plaintiff from harm caused by a third party. The "special duty" inquiry can arise in such situations because a general duty municipalities may have to protect the public does not automatically give rise to an ordinary duty owed to a specific individual...[W]here the provision of government services is insufficient to support an ordinary duty necessary for a negligence claim to proceed, we then have asked whether a special duty exists. 

Wilson further explained that the majority's own analysis undermined its position:

Indeed, the majority's own characterization of the special duty doctrine exposes its error. The majority states that "[t]he special duty doctrine thus developed `to rationally limit the class of citizens to whom the municipality owes a duty of protection,'" citing Kircher v City of Jamestown, 74 NY2d 251, 258 [1989]). The cases cited by the majority for its descriptions of the special duty doctrine all are cases that involve claims that governmental actors failed in their duty to protect an individual from third-party harm. [But w]hen a governmental actor directly and negligently injures someone, no "duty of protection" is involved—it is a duty not to inflict injury.

Wilson then took aim at the majority's warning of municipal exposure to "open-ended liability of enormous proportions" in the absence of its formulation of the "special duty" rule:

[H]olding the government liable in negligence for its own acts that directly cause injury serves the same socially beneficial purpose as with private actors: placing an economic incentive to take reasonable steps to avoid unnecessary harm on the party able to avoid it. To the extent a different cost-benefit calculus pertains to some types of government action that cause direct injury, that is handled through the separate application of governmental immunity, not contortions of negligence law.

Finally, decrying the majority's reactionary "special duty" jurisprudence as contrasted with its prouder tradition, Wilson concluded:

Where we could have revived the proud tradition of Chief Judge Cardozo's Court in advancing tort law to meet modern needs by announcing an ordinary duty of the police to use due care in planning and executing no-knock warrants, the majority has littered its opinion with unsound conclusions suggesting that police activity—or any nonproprietary governmental negligence—can proceed only by establishing a special duty. Instead of advancing the law, we become a regressive outlier. Other states do not require any showing of a special duty when a governmental actor has directly harmed the plaintiff.

I have written previously about the Court's rigid application of the "special duty" rule to immunize government from responsibility for its wrongdoing, regardless of the heartless consequences, as though the rule were some near-religious precept. (See e.g., the discussion of Judge Joseph Bellacosa's dissent in the aforementioned Kircher case in my Great Dissents article cited above.) I have not withheld my view that the Court's devotion to the rule has resulted in atrocious injustices. 

We have been considering some of then-Judge Wilson's most passionate dissenting opinions. Now that he presides over the Court as Chief Judge, the question, of course, arises as to whether the Court's position on the "special duty" rule--as well as on other areas of the law in which Wilson has been dissenting, such as the Labor Law protection of workers, the redress of wrongful convictions, the enforcement of the right to counsel, etc.--will start to take a different turn. We certainly shall see.