Court Vacates Decision of the Court Administration Allowing Supreme Court Justices of the Appellate Division to Continue Serving

December 31, 2020 - As reported by the New York Post on December 30, 2020, Justice Paul J. Baisley, Jr. of the New York State Supreme Court vacated the decision to deny certification to our clients, four Appellate Division justices from the First and Second Departments.  In so doing, these justices may continue serving on the bench after December 31, 2020.  The decision at the heart of the December 30th ruling was made by the Administrative Board who had denied certification to 46 of 49 judges who had attained the age of 70, the mandatory retirement age for judges in New York State.  

Justice Baisley found that the Administrative Board, together with Chief Judge Janet DiFiore and Judge Lawrence K. Marks, had used the current crisis caused by the pandemic to apply a broad policy determination which “…failed to follow procedures of the constitutional certification process by making a broad policy determination and not individual choices this year, even though, as noted, 3 of the 49 judges were certified.”  The Courts found the conduct by the Respondents as both arbitrary and capricious.  

Business Litigation partners Y. David Scharf, Danielle C. Lesser, and the Hon. David B. Saxe (Ret.), and associate Collin A. Rose, together with James M. Catterson of Arnold & Porter, represent the Petitioners.  

The case is Hon. Ellen Gesmer et al. v. The Administrative Board of the New York State Unified Court System et al., Case No. 616980/2020, in the Supreme Court of the State of New York, County of Suffolk.

A copy of the decision can be found here.

Previous media coverage of Morrison Cohen’s representation of the Petitioners can be found here.