On Thursday, January 21, 2016, the New York State Senate confirmed Governor Andrew Cuomo’s nomination of Janet DiFiore for the state’s next chief judge of the Court of Appeals, New York’s highest court. Chief Judge DiFiore was previously the Westchester County District Attorney, serving her third term, and has held that position for a decade. Her confirmation and the circumstances surrounding her nomination and confirmation will have an immediate and long-lasting impact on litigation in New York courts.

The Governor nominated Chief Judge DiFiore past the legal deadline, and the Senate should have voted on her confirmation at the end of 2015. This delay left the court with just five judges for the January 2016 session because Judge Read stepped down in August 2015 and the Senate has not yet confirmed the Governor’s nomination of Michael J. Garcia to fill the vacancy. The court already convened for the January 2016 session and the lack of two judges has impacted the judicial calendar. Two appeals were removed from the January 2016 calendar and several others could not be put on the calendar until the vacancies were filled. Therefore, appeals to the court will likely be delayed, a rare circumstance.

Chief Judge DiFiore’s resume as a district attorney, trial court judge, and as supervising judge for the criminal courts for the Ninth Judicial District, among other positions, demonstrates strong leadership skills that are particularly important for the state’s highest judge. She will set the tone for the other New York State judges, where accountability is extremely important. Her leadership is particularly important for the Court of Appeals to police oral argument so the attorneys are able to answer questions of the judges, a phenomenon that at times was lacking in recent years. Chief Judge DiFiore can also work to gain consensus so that the court can speak with one voice on most issues, similar to the court under Chief Judge Kaye’s tenure. She can also work to maintain court protocols such as keeping the typical turnaround time between oral argument and decision to one month.

The fact that Chief Judge DiFiore comes to the position without first sitting as a judge on the Court of Appeals is not unusual. Moreover, her lack of experience as an appellate judge does not mean that the Chief Judge DiFiore cannot thrive as the state’s highest jurist. Chief Judge Judith Kaye had not been a judge before her nomination to the court, but she successfully served in that role for 15 years. Judge Robert Smith, who retired from the Court of Appeals at the end of 2014, likewise had no judicial experience prior to his tenure. He wrote some of best majority and dissenting opinions the court has seen in several years.

The court addresses important issues that impact New Yorkers and beyond, especially given that New York City is one of the world’s biggest financial centers. Chief Judge DiFiore will, no doubt, have an important influence on issues concerning the Scaffold Law, insurance coverage, employment law, business law, and tort law, among other issues.

If you have questions about how this decision may impact your business, please contact:

• Matthew S. Lerner (518.935.4230; mlerner@goldbergsegalla.com)
• Meghan M. Brown (716.844.3457; mbrown@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Appellate Practice Group.