Ahead for the Court of Appeals: Change

    The composition of the New York Court of Appeals is starting to change. We will get our first look at what lies ahead on December 1. 
    There are two vacancies to be filled in the next few months. Carmen Ciparick has reached the mandatory retirement age of 70, and must step down from the Court on December 31.  And the sudden death of Theodore T. Jones has created the second vacancy. A number of the judges are approaching 70 years of age, so even more vacancies lie ahead for the seven-member court in the next few years. 
    While the the Court of Appeals is not as ideologically divided as the United States Supreme Court, Judges Ciparick and Jones were generally seen as two of the more liberal members of the Court along with Chief Judge Lippman. Replacements more conservative then they would, therefore, work an ideological shift in the Court.   
     In accordance with the State Constitution and the Judiciary Law, New York has a 12-person Commission on Judicial Nomination whose members are appointed by the Governor, the Chief Judge of the Court of Appeals, the Speaker of the State Assembly, the president of the State Senate, and the minority leaders of the Assembly and the Senate. Former Chief Judith Kaye is the chair of the Commission.
    To fill a Court of Appeals vacancy, the Commission must first recommend to the Governor at least three, and not more than seven, persons. At least eight of the Commission members must vote for each person recommended.
    To fill the vacancy created by Judge Ciparick's retirement, the Commission must make its recommendations by December 1. The Governor must then select one person no sooner than January 1 and no later than January 15. That person's name is then sent to the State Senate for a vote. On March 7 the Commission will make its recommendations to fill the vacancy created by the death of Judge Jones. 
    In recent years there has been much criticism that the Commission recommendation process has been a closed or predictable affair. To create a wider pool of people for the Commission to consider, Judge Kaye has publicly encouraged applications. We will know on December 1 whether her efforts have been successful. 
    Judge Ciparick's retirement has reopened the debate over New York's mandatory retirement age for judges. While Appellate Division judges who reach 70 years of age can be certified two years at a time to continue serving until they are 76 years old, there is no similar procedure for the Court of Appeals. 
    Those favoring the mandatory retirement at 70 maintain that it allows new blood to flow into the judicial system, while those opposed to it note the loss to New York of experienced judges. While age is plainly no disqualification--look at the United States Supreme Court--it is politically unrealistic to expect that New York will amend its Constitution to entirely eliminate mandatory retirement for judges.
    In light of the political realities, I favor increasing the age to 76. I am concerned that a mandatory retirement age of 70 creates a smaller pool of candidates for the Court of Appeals. Court of Appeals judges sit for 14 years, but if an outstanding prospect for the Court of Appeals is 64 or 65, it is highly unlikely that a Governor would select that person for only 5 or 6 years of service. Because Governors want to shape the Court for the long-term, mandatory retirement at 70 eliminates many highly talented lawyers and sitting judges from consideration for the Court of Appeals. 
    Finally, I think New York should enlarge the period of time for public comment on the Commission's recommendations. The Commission will make its recommendations on December 1, and the Governor can make his selection as soon as January 1. If the Commission recommends as many as seven people, 30 days is simply too short a period of time for serious public comment on so many people.    
    A few days ago I wrote about the interview of Justice Scalia at the appellate law conference in New Orleans. Justice Scalia was confirmed by the United States Senate by a 98-0 vote. When asked about more fractious confirmation battles, to my surprise he said they were a good thing: as unelected judges weigh in more and more on matters with social and political consequences, it is a good thing to have members of the public make their views known to the United States Senators who will vote on the nominee. Thirty days to comment on seven recommendations for a position which can affect New York law for the next 14 years, is, in my view, too short a period of time.            

Defamation and the Internet

    With the exponential growth of websites and blogs society has been forced to address defamatory abuses on the internet: sometimes wild and unsubstantiated statements about individuals which would be the basis for tort liability if published in a newspaper or a book.
    Ordinarily, the publisher of defamatory material authored by a third person is subject to tort liability. But in 1996, in the Communications Decency Act (CDA), 47 U.S.C. § 230, Congress created an exception to this general rule for internet publication. In substance, if one is a "provider or user of an interactive computer service" he is not liable in tort for publishing material authored by third parties.
    Today in Shiamili v. The Real Estate Group of New York, Inc., a divided New York Court of Appeals took its first look at the CDA and ruled that Section 230 immunity applies to those who run a blog dedicated to the New York City real estate industry. The allegedly defamatory comments were written by readers of the blog, not the administrator of the blog. In the view of the majority of the Court, simply publishing the comments could not create tort liability in light of Section 230.  A dissenting opinion by Chief Judge Lippman maintained that the defendants had gone further than merely publishing the material: they abused their power as website publishers to "promote and amplify defamation targeted at a business competitor." The dissent is noteworthy because Chief Judge Lippman is seen as a strong advocate of First Amendment free speech.
    The majority opinion in Shiamili contains an excellent survey of cases from across the country interpreting Section 230. The decision can be found here.   

Access to the New York Court of Appeals

Access to the New York Court of Appeals, the state's highest court, is limited. In criminal cases, except for a person sentenced to death, no party--neither defendant nor prosecutor--has a right to appeal to the Court. Instead, permission to appeal must be granted by a Justice of the Appellate Division, or a Judge of the Court of Appeals.
In civil cases, there is a somewhat greater right to appeal, most commonly when there are two dissents on the law in the Appellate Division. See, CPLR § 5601. Otherwise, civil litigants must secure permission to appeal from either the Appellate Division or the Court of Appeals itself, an endeavor informed by often abstruse but very important notions of "finality" and "appealability."  See, CLPR § 5602.
    But whether it is a criminal case or a civil case the rule of thumb is the same: it is difficult to get a case into the Court of Appeals.    
    The Clerk of the Court of Appeals has just issued his annual report for 2010, and the report confirms the rule of thumb. In civil cases there were 1,045 motions seeking leave to appeal and the Court granted only 6% of the requests. This was down from the 7.2% grant rate in 2009.
    In criminal cases there were 2,220  applications for permission to appeal, and the Court granted only 108--or 4.9%. This is a considerable increase from the 2009 grant rate of 3.4%, and the 2% grant rate in 2008. Since his appointment in 2009, Chief Judge Jonathan Lippman has publicly spoken of the need for the Court to hear more criminal cases. See, Full Court Pass, May 5, 2009. The increased number of grants in criminal cases seemingly reflects his success in convincing other members of the Court of the importance of hearing criminal appeals.
    The message of the Report is clear: if a party does not prevail in the Appellate Division, there is simply a very limited opportunity to change the outcome by securing further review in the Court of Appeals. The full Report can be found by going to the Court of Appeals website here.     

Court of Appeals: Statute of Limitations for Doctors Conducting Independent Medical Examinations

In a decision of enormous importance to personal injury plaintiffs, their attorneys, and to doctors who conduct independent medical examinations (IME) for defendants, a divided New York Court of Appeals ruled today that an action for injuries caused during an IME is governed by the 2 years, 6 months statute of limitations for malpractice, and not the three year statute of limitations for ordinary negligence. Bazakos v. Lewis.

Plaintiff Bazakos brought an action for personal injuries sustained in an automobile accident. Pursuant to CPLR § 3121 he was required to undergo an IME by a doctor designated by the defendant. During the IME, Bazakos claimed, the doctor injured him. Two years and eleven months later, Bazakos sued the doctor. Malpractice actions in New York are governed by a 2 years, 6 months statute of limitations, CPLR § 214-a, whereas ordinary negligence claims for personal injury are governed by a 3 year statute of limitations. CPLR § 214.

In an opinion by Judge Smith, four members of the Court concluded that an IME creates a "limited physician-patient relationship" and that claims that the IME was conducted negligently are governed by the 2 years, 6 months statute of limitations. Citing a Michigan case, the majority concluded that the claim here is that the doctor "breached his duty 'to perform the examination in a manner not to cause physical harm to the examinee.' That is a claim for medical malpractice." Bazakos' suit is, therefore, untimely, and must be dismissed.

In an angry dissent for himself and Judges Pigott and Jones, Chief Judge Lippman maintained that the essence of a malpractice claim is the rendition of medical treatment. Because an IME does not involve medical treatment, a claim for injuries sustained during an IME is governed by the 3 year statute of limitations for ordinary negligence:

"Here, although [the doctor] may have employed medical techniques in examining plaintiff, it is plain that no medical treatment was intended or in fact provided. The exam was conducted simply as a disclosure device in litigation and, indeed, one whose benefit inured not to the examinee but to the examinee's adversary. Bereft of any medical treatment rationale or application, [the doctor's] conduct during his examination of plaintiff is not amenable to description as medical malpractice within the meaning of CPLR 214-a."

The majority's view to the contrary, the Chief Judge writes, is a "novel and highly problematic notion," and the concept of a "limited physician-patient relationship" is "no more than a device to avail a litigant of a statutory bar....What is involved then is simply the arbitrary creation of an exception for a group of practitioners who, as a group, neither seek nor are entitled to the protection properly afforded and reserved to those engaged in the delivery of medical care and treatment."