Hoping to polish his arguably tainted mantle as reformer, Governor Eliot Spitzer has picked a female and a Latino for his first appellate appointments.

On January 2 Spitzer elevated Supreme Court Justices Rolando T. Acosta, a former Legal Aid Society attorney, and Karla Moskowitz, a 16-year veteran of the New York Supreme Court, to the Appellate Division, First Department posts.

The move distanced Spitzer from former Governor George E. Pataki’s poor diversity record in judicial appointments —  in 12 years, Pataki picked four people of color and four women to the New York City Appellate Division bench.

In an exclusive interview, Acosta described the whirlwind of transition, explaining how he wrote and decided all his pending decisions over the holiday: “I had got the call two weeks before [the assignment]. . . .  I took the motions and decisions that I thought it wouldn’t be fair to assign to another judge,” he said. “While everybody was enjoying their Christmas break, I was deciding cases.”

Diversity politics (and holiday homework) aside, how have these candidates performed as judges on the trial bench?

The year-end backlog statistics from the Office of Court Administration have still not been released this year. But one performance measure tracked independently by Judicial Reports is the treatment of their earlier decisions by the appellate courts. According to Judicial Reports statistics, the judges' Supreme Court rulings were reversed at higher rates than their peers.

Since 2000, both were reversed by the Appellate Division more than 40 percent of the time, as compared with the First Department, Civil Term average of 37 percent.

When asked about his reversal rate, Justice Acosta defended his work.

“My responsibility is that parties are properly heard in my court and that justice is dispensed. I have to make sure there’s a proper and thorough analysis of the law,” he said, contrasting the work of a Supreme Court Justice against the job of Appellate Division judges — who rule on cases in panels. “Judges don’t make decision by poll, we make them on the facts and on the law.”

Justice Moskowitz did not respond to an interview request.

Acosta’s “smelliest” reversal came in April, when the Appellate Division overturned his dismissal of an eviction action against a woman found to have “noxious odors” emanating from her dangerously crowded apartment.

Despite the testimony of two firefighters about the smell, Acosta ordered the condominium to pay attorney fees for the tenant.

The Appellate Division overruled Acosta in a strongly worded opinion: “Such a conclusion strains credulity . . . testimony clearly establishes the claimed ongoing, recurring presence of an unacceptable level of odor constituting a nuisance and warranting eviction.”

Attorney Eugene Neal Kaplan, a partner at Kaplan, Thomashower & Landau representing Haroldon Court Condominium, thought Acosta's decision had reflected a pro-tenant bias. Reached for an interview, he cited the judge’s professional history.

Acosta spent six years as a staff attorney for the Legal Aid Society. He rose up through the ranks of that public-defender organization, serving as a director in Brooklyn before winning a spot on the Civil Court.

Said Kaplan: “Because he had more of a legal services career, he had that bent — that most judges do — towards tenants. I think he probably was sympathetic to the tenant. Nine out of ten judges in New York County will be, too. That’s the nature of the beast.”

Click here to read the Reversal Report account.

As for Moskowitz, she was reversed last September after she allowed a shareholder lawsuit to proceed. The Appellate Division dismissed the whole suit.

Shareholders in Omnicom Group Inc. had sued after the directors made a $280 million transfer of the company’s internet investments into a subsidiary venture. The suit alleged that the company hoped to hide huge losses from shareholders, moving the investments as the dotcom bubble burst.

Attorney Eric L. Zagar, a partner at Schiffrin Barroway Topaz & Kessler, represented the shareholders in that decision and said that the Appellate Division “missed the boat” on the reversal. He agreed with Moskowitz, who had allowed the suit to proceed, finding that "the allegations of the complaint showed that the sole purpose of the transaction was to conceal the true status of the failing Internet companies.”

The Appellate Division ruled that the facts “[did] not rule out all possibility that the transaction was the product of sound business judgment.” Based on the possibility that the company could have made a good decision with the stock shuffle, the appellate court dismissed.

Moskowitz spent most of her Supreme Court career in the Commercial Part, a division that deals with expensive corporate lawsuits. (Last year, she suffered exactly the same number of reversals, 15, as the Part average.)  

Not surprisingly, Zagar said he was pleased that Moskowitz would bring her shareholder litigation experience to the appellate court. “I would hope her presence would bring a good experience and a good point of view that may be new to the court,” he said. “She has had a number of stockholder actions. I think she understands what those cases are about and has a good real-world view of what those cases are like, and that will be a real asset.”

Click here to read the Reversal Report account.


Acosta had a big year in 2007, his docket packed with high-profile cases.

In January, he ordered comedian Jerry Seinfeld to pay his broker about $100,000 in fees when he negotiated on his own behalf with the owners of a multi-million dollar townhouse while his broker observed the Jewish Sabbath.

A few months later, he allowed a Bronx man to proceed with a $120 million lawsuit alleging that Janet Jackson’s bodyguards injured him at a concert.

Acosta most recently dismissed a restitution lawsuit against the Andrew Lloyd Webber Art Foundation. A man had sued the composer’s foundation, hoping to recover a $60 million Picasso painting once owned by his great uncle, a Berlin banker, which the Nazis allegedly had forced the banker to sell. Acosta ruled that since no one appointed the nephew to represent the great uncle, the suit should be dismissed.

Acosta spent his undergraduate years at Columbia College, moving to Columbia University School of Law to earn his law degree in 1982.

Half of Acosta’s career was spent in the Legal Aid Society, beginning as a staff attorney from 1982 until 1988. He left that position to become deputy commissioner on Human Rights in New York City in 1992.

In his interview, Acosta said that he naturally gravitated towards the Legal Aid Society after the organization helped his family immigrate to the United States from the Dominican Republic. Still, the judge said his public advocacy ended when he took the bench.

“In my role as a judge, I was obviously not playing the role of the advocate. I make sure that justice is properly dispensed. My legal experience enriches my role as a judge, but my responsibility is not to advocate for one party,” he concluded.

He spent two more years as a Legal Aid Society Director of Government Civil Practice, before winning a spot on the Civil Court in 1997. That year was the last time New York judges received a cost-of-living adjustment, and Acosta cited that as the biggest problem that has developed during his tenure.

“It’s a very difficult thing — particularly judges living in Manhattan. The nature of the dispute has raised questions about whether we are an equal branch of the government,” he said.

Acosta was elected to the Supreme Court in 2003.

Statistically, Acosta has a 43.6 percent reversal rate on the Supreme Court bench, higher than the First Department Civil Term’s average of 37 percent between 2000 and 2005. He worked 208 days in 2006, falling slightly below the citywide average of 211. In addition, Acosta disposed of 481 cases in 2006 — beating the average of 400 per year in the Individual Assignment System (the city’s last remaining section where one judge is assigned a case from beginning to end.)

 
Oddly enough, Moskowitz’s biggest case of the year was a suit filed by the man who appointed her to the Appellate Division.

In 2007, Moskowitz dismissed six of seven counts on a common law fraud lawsuit that then-Attorney General Spitzer filed against H & R Block. Spitzer alleged that the company’s retirement accounts drew unnecessary fees from investors’ funds.

This was the second time the suit landed in Moskowtiz’s lap. Spitzer had filed a similar suit against the company in 2006, but Moskowitz dismissed it, ruling that since the Missouri-based company "does not directly conduct business in New York," the court had little jurisdiction over the accounting firm.

Moskowitz began her career as a deputy in the State Attorney General’s office. She then entered private practice at Moskowitz and Moll from 1975 until 1980. During that time, she also served as an Administrative Law Judge in the New York State Health Department.

That judicial experience paid off, as she was elected to the Civil Court in 1981, serving for ten years until she was elected to the state Supreme Court in 1992.*

Statistically, Moskowitz has maintained a 42 percent reversal rate, higher than the First Department Civil Term’s average of 37 percent between 2000 and 2005. During that same period, the Commercial Part average was 36 percent.

Additionally, Moskowitz worked 218 judge days in 2006, more than the citywide average of 211. Moskowitz disposed of 306 cases that same year, beating the Commercial Part average by ten cases.

Moskowitz took on a massive insurance suit in 2003, one of the first cases determining what the corporate scandals of the new millennium would mean for insurers. She ruled that Chubb's Vigilant Insurance Co. was not responsible for insuring the $100 million in fines that Credit Suisse First Boston (CSFB) was ordered to make by the Securities and Exchange Commission. The bank had accepted those regulatory fines to settle a complaint (but not admit wrongdoing) after an investment bank scandal that rocked the institution.

“The purpose is to deprive CSFB of money that it obtained unjustly and to deter similar conduct in the future,” she wrote, shifting responsibility away from insurers in a time when corporate scandals at Enron and WorldCom threatened to bring huge payouts to companies that insured investment banks.

In 2006, Moskowitz declined to dismiss a $25 million lawsuit filed by the remaining members of the Beatles against their record company. The suit accused Capitol Records and EMI Records of fraud and breach of contract, and the judge’s ruling kept the case alive.

That case settled in 2007, but neither party disclosed the terms of the suit.

*CORRECTION: A previous version of this story omitted Justice Moskowitz's Civil Court experience.