Judicial Reports: The Geography of Justice

By Mark Thompson
markthomp@yahoo.com
Posted 01-16-08

Whether you're representing construction worker with a highrise injury or a tenant with cat in a condo, when it comes to the law in New York, your borough is your destiny.

A worker injured on a faulty scaffold during a lunch break will likely be covered by the New York Labor Law provision that addresses elevation-related risks — if the worksite was in the Bronx. But not if the accident occurred a couple of subway stops away in Brooklyn.

A parent in Manhattan with an ex-spouse who gets a big raise can seek a court-ordered boost in child support solely on the basis of the ex’s increased income. Not so a custodial parent across the river in Queens. He or she would have to show that there are other reasons for an upward modification.

Want to keep your cat in a condominium with a no-pet rule? You’ll have a decent chance in Brooklyn, Queens or Staten Island. As interpreted in those parts of town, the city’s pet ordinance  extends to condominiums. So, unless the condo board has commenced legal action with 90 days of learning about the animal, the no-pet clause will be waived for that particular shareholder. As the law is interpreted in Manhattan and the Bronx, it doesn’t cover condominiums, so the board could sue you at any time for breaching the no-pet rule, no matter how long they’ve known you’ve had your cat.

The sometimes major discrepancies in how the same laws are interpreted from one borough to the next are courtesy of New York City being overseen by two notably different intermediate appellate courts – the Appellate Division’s Manhattan-based First Department, which covers Manhattan and the Bronx, and the Brooklyn-based Second Department, which covers the three other boroughs plus seven suburban counties.

They are different because the New York Constitution requires that the Presiding Judge and a majority of others in each department must be sitting Supreme Court Justices who reside in the district. That pool of potential nominees is overwhelmingly Democratic in the First Department, while there are plenty of Republicans to choose from in the Second Department.

As a result, the First Department has traditionally been the more liberal — as reflected in rulings that are, for instance, easier on plaintiffs in tort suits and tougher on police.

The Second Department, in contrast, has been “somewhat schizophrenic,” said Anthony Colleluori, a Long Island lawyer who has practiced in both courts. “Because it takes in Westchester, Suffolk and Nassau County, as well as Brooklyn, and has judges from all those counties, you don't know what you're going to get. It depends on who is sitting on your panel.”

Judges who originally hail from different parts of the district, which stretches from blighted inner city neighborhoods to wealthy exurbs, have differing predispositions towards search and seizure and police abuse cases, said Colleluori, a former Legal Aid Society lawyer. Those from outside the city have a greater skepticism for tort claims and lower benchmarks for damage awards, resulting in “a lot more conservative civil verdicts in Second Department. When judges see larger verdicts coming out of Brooklyn, and they compare those to what’s going on division-wide, they are going to bring the Brooklyn verdict into line with what’s happening in the rest of the department,” he said. Thus, it is “very difficult to get plaintiffs verdicts out of the Second, which is why personal injury lawyers, forever and today, have wanted to try cases in the Bronx.”


During his three terms, Governor George Pataki exercised his prerogative by trying to swing the First Department more into line with his worldview. He did this through appointment of conservative Republican judges from well outside the city (often through a labyrinthine process to comply with residency requirements) to sit on the Manhattan court. In his 12 years in office, 10 of Pataki’s 13 appointees to the 16-judge First Department were originally from elsewhere, including several from as far Upstate as Albany and Utica. For appointments to the Second Department, Pataki favored judges from the Republican parts of the district, as well as from Upstate.

In his final weeks in office, for instance, Pataki filled the last four openings on the court with a judge from Albany, another from Syracuse, and two others from Nassau and Westchester Counties.

Appellate attorneys say Pataki appointees steered the First Department closer in some respects to other appellate departments including the Second. But plenty of splits have persisted. The court in Manhattan could begin to drift further from the other departments as Governor Eliot Spitzer’s choices filter into the ranks of appellate judges.

With his first three appointments to the First Department — Jonathan Lippman, Karla Moskowitz and Rolando Acosta — Spitzer has already doubled the number of women and Hispanics on a court that had been mostly male and white under Pataki. All three also went to law school in Manhattan and have spent most of their legal careers there.

Appellate lawyers who chafed under the reign of Pataki’s imports on the First Department bench welcome the changes that they expect Spitzer’s appointees to bring to the appellate court.

“Spitzer is going to appoint to the appellate departments from within each department, which means for the First and Second, more judges of color, more female judges. The departments will have less of a white, male, conservative, Upstate feel,” said Colleluori. “I think Spitzer's moves are much more in keeping with what the Constitution had in mind. Pataki destroyed any sense of racial, ethnic, and sexual diversity, especially in the First Department.”

Despite his critique, Colleluori was quick to defend the probity of the conservative white males who have had a disproportionate presence on New York City’s appellate courts.

“All of them are fair, by the way,” he said. “I've always gotten a fair hearing from judges like Peter Skelos and Robert Schmidt,” both of whom are from Nassau County out on Long Island, and are among the more conservative members of the Second Department. “They listen to the arguments, they are very bright, they are always prepared. It's just that as you go farther out on the Island, or further north in New York, there is less of an understanding of life in the city.”

Another attorney who regularly argues appeals before the First Department, and who requested anonymity to protect the interests of future clients, mentioned one area of urban law that has befuddled judges from outside of the city.

“The Upstate people from Poughkeepsie, Utica, or wherever Pataki was getting them didn't understand rent control. They are obviously intelligent people and are learned in the law, but they were very perplexed at first. They thought it was unusual and almost un-American that you could tell landlords what to charge and you could force them to give back money. It took them a while to get that. The established New Yorkers, whether they were conservative or not, whether they thought it was a good idea or a bad idea, at least they understood how the system worked.”

The out-of-towners clearly didn’t capitulate entirely to the New York City way of thinking. With their arrival, the First Department took a noticeable turn to the right, appellate lawyers say. “The First Department has gotten a lot more conservative as of late,” said Colleluori. “There are more pro-government verdicts, both in the criminal and the personal injury area.”

A lawyer who represents a transit agency in personal injury cases and who asked not to be named agreed in part.

“The consensus is that Second Department is more likely to grant summary judgment to defendants while the First is less likely to do so,” he said. “You will probably see that most prominently in the area of slip and fall cases where the Second Department is more like to dismiss a case on summary judgment, for example by finding that the accident was caused by a trivial defect. Also the view is that the First Department is more likely to sustain a larger damage award. That is based on anecdotal evidence, but other lawyers will more or less affirm that.”

That has long been the prevailing wisdom, but as the transit agency lawyer added, “I’ve definitely seen a trend toward more evening out between Second and First. Four or five years ago, you would have trouble finding cases in the First where the court would dismiss on a threshold issue. That has changed for sure.”

That said, plenty of differences between the First and Second Department have persisted.

The differences most noticed by Karen Copeland, a Manhattan lawyer who specializes in pet disputes, concern animals. Aside from the split over whether the Pet Law applies to condominiums, the First has generally been more pro-pet, she said.

“I wouldn’t say the Second Department is not animal friendly, but the First Department is taking a lead in that regard,” she said. For instance, the First Department has construed the felony animal abuse statute to cover goldfish in a ruling that sent someone to jail for six years for stomping one to death. Other First Department rulings, she added, have declared that no breed of dog is inherently dangerous, and have decided pet custody disputes “in the best interest of the animal.”

In passing judgment on criminal trial rulings, the two departments have also continued to march to somewhat different drummers. The First generally sets higher standards of performance for trial judges than the Second, in the view of an appellate attorney for indigent defendants who requested anonymity. “If you look at the statistics, you would see that the First Department is at least twice as likely to reverse in a criminal case,” the attorney said. Indeed, in 2007, the First Department reversed 30 convictions to the Second’s tally of 15.

“Another thing that the First Department has traditionally been good on compared with the Second Department is modifying sentences,” the defender added. “In convictions after trial, they have been more willing to reduce sentences as excessive than the Second Department.”

Lingering splits between the two appellate courts in the same city are, by most accounts, not a good thing. “Especially in New York City, where the boundaries are so narrow, those splits between the departments have to get resolved,” said the appellate practitioner who often appears before the First Department. “You can’t have two totally different rules for rent-stabilized tenants [who live] five minutes apart. You can't have two rules in New York City, depending on which borough you live in.”

Despite that, the attorney went on to say, some of the differences in interpretations of laws aren’t going to get resolved anytime soon. “Maybe the issue doesn’t come up frequently enough or isn’t consequential enough. Not every case is a death penalty case. Not every distinction is worth resolving,” he said.

Posted by Dirk on January 16, 2008 02:28 AM to Judicial Reports