| "Kaye —
Year in Review, 1996-1997 Term" |
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Footnote 1a: Chief Judge of the State of New York and Chief Judge of the Court of Appeals of the State of New York. I am grateful to my law clerk Christina D. Sommer for her superb assistance in the preparation of this article. Footnote 1: Article VI, Section 2 of the 1846 New York State Constitution provided: "There shall be a Court of Appeals composed of eight judges, of whom four shall be elected by the electors of the State for eight years, and four selected from the class of Justices of the Supreme Court having the shortest time to serve. Provision shall be made by law, for designating one of the number elected, as chief judge, and for selecting such Justices of the Supreme Court, from time to time, and for so classifying those elected, that one shall be elected every second year." N.Y. Const. art. VI, § 2 (1846). Footnote 2: See, e.g., Judith S. Kaye, The Importance of State Courts: A Snapshot of the New York Court of Appeals, 1994 Annual Survey of American Law xi. I have a more general complaint as well: that the public is not well informed about the work of the courts, but I will reserve that complaint for another day. It seems to me that the profession needs to do a much better job of educating the public about the vital role of the law, lawyers and the courts in our society. We have, regrettably, too long left that important function entirely to the schools and the media. Footnote 3: See Brian J. Ostrom & Neal B. Kauder, Examining the Work of State Courts, 1995: A National Perspective from the Court Statistics Project 95 (1996). Footnote 4: See Judith S. Kaye, One Judge's View of Academic Law Review Writing, 39 J. Legal Educ. 313, 319 (1989); see also Ruth Bader Ginsburg, Remark: On the Interdependence of Law Schools and Law Courts, 83 Va. L. Rev. 829 (1997). Footnote 5: There Shall Be a Court of Appeals: 150th Anniversary of the Court of Appeals of the State of New York (1997) [hereinafter 150th Anniversary Book]. See Francis Bergan, The History of the New York Court of Appeals, 1847-1932, at 44 (1985). Judge Bergan served as an Associate Judge of the Court of Appeals from 1963 to 1972. His book is the only published history of the Court, and a basic source for this portion of the Foreword. A second basic source is a book issued in September 1997 by the Court of Appeals itself, to commemorate its anniversary. Footnote 6: Stewart E. Sterk, The New York Court of Appeals: 150 Years of Leading Decisions, in 150th Anniversary Book, supra note 5, at 49-50. Professor Sterk describes selected decisions since 1847. Footnote 7: Bergan, supra note 5, at 125-26. See generally The Court Through the Decades, in 150th Anniversary Book, supra note 5, at 3-24 (referring repeatedly to the calendar problems). Footnote 8: Bergan, supra note 5, at 125-26. Footnote 9: During the 1996 term of the United States Supreme Court, 90 cases were argued and 80 signed opinions issued. See William H. Rehnquist, The 1997 Year-End Report on the Federal Judiciary 11 (1998). Footnote 10: Judges Vito J. Titone, Joseph W. Bellacosa, George Bundy Smith, Howard A. Levine, Carmen Beauchamp Ciparick and Richard C. Wesley. In the late nineteenth century, judges were added to the Court's complement of eight in an effort to deal with the backlog of cases accumulating on the calendar. An 1899 constitutional amendment authorized the governor to designate up to four Supreme Court Justices to serve as Associate Judges of the Court of Appeals until the pending calendar was brought below 200 cases. See N.Y. Const. art. VI, § 7 (1899); 150th Anniversary Book, supra note 5, at 19; Indeed, Benjamin Cardozo was first named to the Court of Appeals in 1914 as a Supreme Court Justice in New York City, "temporarily" serving by designation of the governor. With the addition of temporary judges, the Court generally had nine or ten Associate Judges and a Chief Judge. The Court continued, however, to sit as a single bench of seven when hearing cases. By 1922, the Court returned to its normal complement of one Chief and six Associates, as it remains to this day. See id. at 19, 22. Footnote 11: See Bergan, supra note 5, at 45-46. Footnote 12: Id. Footnote 13: See id. Footnote 14: Having visited courts around the world, I continue to believe that ours is the most magnificent courtroom anywhere-not the largest or most ornate by any means, but the most magnificent setting for the presentation of oral argument on the law. The scale of the room and handsome carved walls, ceiling and furniture help to create the ambience, but it is the portraits of the judges-a silent progression from the Court's very beginnings-that imbue a sense of the seamless web of the law. A chapter in our 150th Anniversary Book chronicles the homes that preceded the current Court of Appeals Hall on Eagle Street in Albany. See 150th Anniversary Book, supra note 5, at 25-34. Footnote 15: There are undoubtedly litigation trends, although I cannot account for them. For example, I have lately noticed a proliferation of insurance cases. In the criminal law area, defendant's right to be present recently dominated the Court's calendar, as did Rosario issues years earlier. See People v. Rosario, 173 N.E.2d 881, 882-84 (N.Y. 1961) (discussing a defendant's right to access prior statements made by prosecution witnesses). One of my first purchases upon joining the Court in 1983 was a workers' compensation text-we had so many "comp" cases. Lately, however, we have had no workers' compensation cases. Footnote 16: See Weiner v. Lenox Hill Hosp., 673 N.E.2d 914, 917 (N.Y. 1997) (holding that a hospital's failure to properly safeguard its blood supply from HIV contamination "sounds in negligence, not medical malpractice," for statute of limitations purposes). Footnote 17: See Cahill v. Rosa, 674 N.E.2d 274, 277 (N.Y. 1997); Lasser v. Rosa, 667 N.E.2d 339 (N.Y. 1996) (holding that private dental offices are considered places of public accommodation subject to Human Rights Law). Footnote 18: See Superintendent of Banks v. CITIC Industrial Bank, 683 N.E.2d 756, 761 (N.Y. 1997) (holding that Banking Law § 606(4) vests Superintendent of Banks with considerable discretion regarding the appropriate manner of gathering, liquidating and dealing with the business and property of a foreign bank's failed New York agency). Footnote 19: See Laverack & Haines, Inc. v. State Div. of Human Rights, 673 N.E.2d 586, 586 (N.Y. 1996) (holding that employer adequately rebutted the prima facie case of age discrimination by admitting evidence of legitimate, independent and nondiscriminatory reasons to support its employment decision, such as downsizing of the company's employment rolls due to business setbacks). Footnote 20: See Northville Indus. Corp. v. National Union Fire Ins. Co., 679 N.E.2d 1044, 1049 (N.Y. 1997) (holding that "sudden and accidental" discharge exceptions in insurance policy's pollution exclusion were not applicable because evidence did not show leakages at issue were sudden or environmentally significant). Footnote 21: See In re Nelson R., 683 N.E.2d 329, 331 (N.Y. 1997) (concluding that a juvenile delinquency petition is not facially defective when the only supporting deposition containing factual allegations against the respondent has been sworn to by a child under 12 years old without a prior judicial determination of the child's competency as a witness). Footnote 22: See Brown v. State, 674 N.E.2d 1129, 1131 (N.Y. 1996) (holding that Court of Claims has subject matter jurisdiction to entertain constitutional tort claims against the state); see also Gail Donoghue & Jonathan I. Edelstein, Life After Brown: The Future of State Constitutional Tort Actions in New York, 42 N.Y.L. Sch. L. Rev. 447 (1998). Footnote 23: See Wolkoff v. Chassin, 675 N.E.2d 447, 447 (N.Y. 1996) (determining that an action taken by three-member quorum of the Administrative Review Board for Professional Medical Conduct is valid). Footnote 24: See Buckley v. National Freight, Inc., 681 N.E.2d 1287, 1288 (N.Y. 1997) (deciding that because a loss of consortium claim could have been commenced and joined with an impaired spouse's personal injury claim before settlement, the impaired spouse's release barred the plaintiff from pursuing his loss of consortium claim). Footnote 25: See People v. Greenberg, 678 N.E.2d 878, 881 (N.Y. 1997) (deciding under CPL 20.40(4)(f) that an offense committed on board a common carrier may be prosecuted in any county through which the carrier passed during the trip). Footnote 26: See Jennings v. New York State Office of Mental Health, 682 N.E.2d 953, 955 (N.Y. 1997) (finding that substantial evidence supported determination that a proposed community residential facility for the mentally disabled would not substantially alter the nature or character of the community). Footnote 27: See Juan C. v. R.C. Cortines, 679 N.E.2d 1061, 1063 (N.Y. 1997) (holding that the doctrine of collateral estoppel does not apply to foreclose education officials from separately determining the suspension and reassignment of a student from whom a gun was seized in his high school, even though the gun had been suppressed in a prior juvenile delinquency proceeding). Footnote 28: See People v. Alamo Rent-A-Car, 678 N.E.2d 882, 883 (N.Y. 1997) (holding that New York Automobile Insurance Plan is "available" insurance coverage within the meaning of General Business Law § 391-g, which specifies that it is unlawful to refuse to rent motor vehicles to persons 18 or over solely on the basis of age, provided that insurance coverage for persons of such age is "available"). Footnote 29: See Big Apple Food Vendors' Ass'n v. Street Vendor Review Panel, 683 N.E.2d 752, 755 (N.Y. 1997) (determining that City Street Vendor Review Panel properly adopted rule extending certain existing street vending restrictions and creating additional restricted locales). Footnote 30: See Rogers v. New York City Transit Authority, 680 N.E.2d 142, 144 (N.Y. 1997) (holding that New York City Transit Authority had authority to determine that sale of a political newspaper on subway property was commercial and therefore expressly prohibited under Transit Authority Regulations). Footnote 31: See Homier Distrib. Co., v. City of Albany, 681 N.E.2d 390, 397 (N.Y. 1997) (determining that a special tax on transient retailers operating at temporary business sites discriminated in favor of local retail businesses and violated the Commerce Clause). Footnote 32: The modern field of product liability law is another excellent illustration of an area of common law development. See, e.g., Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222 (N.Y. 1992); Robinson v. Reed- Prentice Div., 49 N.Y.2d 471 (1980). Footnote 33: See Morgan v. State of New York (bobsledding), Beck v. Scimeca (karate), Chimerine v. World Champion John Chung Tae Kwon Do, Inst. (Tae Kwon Do), Siegel v. City of New York (tennis), 685 N.E.2d 202 (N.Y. 1997). Footnote 34: Guido Calabresi, A Common Law for the Age of Statutes 1 (1982). Footnote 35: See, e.g., Felker v. Corning, Inc., 682 N.E.2d 950, 952-53 (N.Y. 1997) (holding that an owner or contractor who fails to provide any safety devices for workers at a building worksite is, under Labor Law § 240(1), absolutely liable in damages for injuries sustained by a worker when the absence of such devices is the proximate cause of the injuries). Footnote 36: 681 N.E.2d 398 (N.Y. 1997). Footnote 37: See id. at 400. Footnote 38: See id. Footnote 39: Under the pre-1980 statute, the court had discretion whether to enter a money judgment unless one had already been entered for the arrears. See N.Y. Dom. Rel. Law § 244 (McKinney 1986); N.Y. Fam. Ct. Act § 460(1) (McKinney 1983). In 1980, these sections were amended to make the entry of a money judgment mandatory "unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears." N.Y. Dom. Rel. Law § 244 (amended by L 1980, ch. 645, §§ 1, 5); see also N.Y. Fam. Ct. Act § 460 (amended by L 1980, ch. 241, § 2). Footnote 40: Only prospective modifications, where tenable under the limited situations outlined in the Domestic Relations Law and the Family Court Act, were permitted. Footnote 41: See Grumet v. Cuomo, 681 N.E.2d 340, 345 (N.Y. 1997) (holding that a law used to establish a school district for the religious community of Kiryas Joel violated neutrality principles of the Establishment Clause). Footnote 42: See Gazza v. State Dep't of Envtl. Conservation, 679 N.E.2d 1035, 1036 (N.Y. 1997) (holding that environmental restrictions did not effect an unconstitutional taking of property for which a landowner must be justly compensated); Anello v. Zoning Bd. of Appeals, 678 N.E.2d 870, 870 (N.Y. 1997) (stating that the denial of variance from "steep slope" ordinance, which prevented petitioner from building a one-family dwelling on his parcel, did not constitute a taking); Kim v. City of New York, 681 N.E.2d 312, 319 (N.Y. 1997) (determining that city enforcement of the legal duty to regrade road, which required plaintiffs to raise property to the legal grade, did not constitute a taking). Footnote 43: See People v. Ramos, 685 N.E.2d 492 (N.Y. 1997). Footnote 44: See Randolph N. Jonakait, Secret Testimony and Public Trials in New York, 42 N.Y.L. Sch. L. Rev. 407 (1998). Footnote 45: See 28 U.S.C. § 2254(b) (1994); Picard v. Connor, 404 U.S. 270, 275 (1971); Irvin v. Dowd, 359 U.S. 394 (1959). Footnote 46: See Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1 (1995). Footnote 47: See Rule 500.17. See, e.g., Rooney v. Tyson, 91 N.Y.2d 830 (1997); Insurance Co. of N. Am. v. ABB Power Generation, Inc., 1997 WL 729117 (N.Y.); Norcon Power Partners v. Niagara Mohawk Power, 681 N.E.2d 1293 (N.Y. 1997). Footnote 48: Walter S. Logan, The Judiciary Article of the New Constitution, in Proceedings of the New York State Bar Association (1894), reprinted in 150th Anniversary Book, supra note 5, at 19. |
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