Appellate Division judge Richard T. Andrias
offers a record of well-respected dissent.
By Jason Boog

Overlooked three times on the Court of Appeals shortlist, appellate justice Richard T. Andrias comes to the current round with a highly contrarian record.

Earlier this year, the New York Law Journal noted that Andrias dissented 15 times in Appellate Division, First Department decisions in 2006, making him the second most dissenting judge, next to Justice James M. McGuire.

An examination of one of the judge’s more prominent dissents last year shows that lawyers on both sides of an issue appreciate his contrary voice. In July 2006, Andrias wrote the dissent in a 3-2 appellate split, arguing that a Supreme Court-issued stay should remain in effect during a complicated insurance case.

In Mt. McKinley Insurance Company v. Corning Incorporated, a group of insurers — each rocked by millions of dollars in asbestos claims leveled against Corning Incorporated — tried to argue that the claims were not covered by the company’s insurance policies.

Corning moved to dismiss the complaint, but a state Supreme Court justice stayed the decision until after federal courts had considered the same motion.  

The Appellate Division reversal was a victory for the insurance companies, lifting the Supreme Court case. M. Miller Baker, a partner at McDermott Will & Emery, represented a few of those victorious companies. While he disagreed with Andrias’s dissent, he left the courtroom with esteem for the judge.

“I respect him and admire him for that — too frequently judges won’t make the effort. I think it’s important that a judge express that dissenting view. It was a short dissent, but it was to the point and pithy,” he concluded.

Baker’s opponent agreed with that assessment of Andrias’s judicial fitness. “I think the court asked very good and pertinent questions. Like most good judges, he didn’t tip his hand,” said Thomas S. D'Antonio, a partner at Ward Norris Heller & Reidy who argued on behalf of Corning Incorporated. “I thought he was well-prepared, professional, obviously had a good grasp of the issue.”

Judge Andrias is a decorated Vietnam War veteran and a 1970 graduate of Columbia Law School. His career began in the Legal Aid Society’s Criminal Defense Division, followed by a stint in private practice specializing in corporate litigation.

Mayor Edward I. Koch appointed him to the criminal bench in 1983. Four years later, he was promoted to supervising judge of the New York County Criminal Court.

In 1987, he won election to the Supreme Court bench. After hearing cases in both the civil and criminal parts, Andrias won re-election 12 years later in 2001. Governor George Pataki appointed Andrias an associate justice of the Appellate Division in 1996.

He’s also served a number of positions in the legal community, including a stint on the executive committee of the Association of the Bar of the City of New York and as chair of the Board of Directors of the Bronx Legal Services.

Recently, the New York State Trial Lawyers Association rated Andrias “qualified and recommended,” one step below the “qualified and highly recommended” rating received by four candidates (Private practitioner George Carpinello, Kings County Administrative Judge Theodore T. Jones, Chief Administrative Judge Juanita Bing Newton, and Supreme Court justice Richard Yates).

In August 2006, Andrias composed the dissent in another dramatic, high-stakes case. In 328 Owners Corp. v. 330 West 86 Oaks Corp., the Appellate Division panel reversed a state Supreme Court decision that would have prevented a development company from replacing a century-old Upper West Side building with a condominium.

“I was very appreciative of the dissent,” said David Rosenberg, the attorney who lost that appeal. “Court of Appeals permission isn’t granted frequently. It’s significant. It’s the first time [in 30 years] I had two judges dissenting so I could automatically go to appeal.”

The building had been preserved by a special purchase under the Urban Development Action Area Act, a bill aimed at maintaining the historic shape of a neighborhood. A local co-op hoped to prevent the developer from demolishing the building and putting up a new condominium.

“Judge Andrias was generally pretty quiet on the bench,” said Rosenberg, but he appreciated the justice’s courtroom manner. “Some appellate judges are there just to show they that they know more than you, and they’ll take cheap shots . . .  it’s better, in many respects, if you don’t make self-serving comments on the Appellate bench.”

As incoming Governor Eliot Spitzer’s deadline nears, Andrias watchers should not be surprised if the fourth time’s the charm.